Justifying the Law-Equity Divide

Samuel Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

The division between law and equity has a long and important history in Anglo-American jurisprudence, and one whose effects continue to resonate in American courts to this day. Indeed, whenever I teach remedies, I tell my students that this is an area of law where history still matters—that if they want to understand the difference between legal and equitable remedies, and to know the types of remedies that their clients might be entitled to in a given case, they need to be at least somewhat familiar with the history of the contest between the English courts of law and the Court of Chancery, which was responsible for developing and administering the rules of equity. Why? Because it was the battle over jurisdictional turf that took place between these courts hundreds of years ago that gave rise to a rule (i.e., the irreparable injury rule) that still operates whenever judges are called upon to decide whether an aggrieved party is entitled to an equitable remedy. Specifically, the irreparable injury rule requires that an aggrieved party seeking an equitable remedy (e.g., specific performance of a contract) must show that there is no adequate legal remedy (e.g., money damages) to put it in the position it would have occupied had the wrongdoer not committed its wrong (e.g., breach of contract).

Apart from this history, however, one wonders whether the irreparable injury rule (specifically), or the division between legal and equitable remedies (more generally), can be justified along more functional lines. Many commentators believe that it cannot. Professor Douglas Laycock, for instance, in strong and colorful language, has argued that “[a] rule designed to preserve the jurisdictional boundaries between two courts that have long been merged should die unless it serves some modern purpose.”1 In fact, Laycock has even claimed that the rule is largely dead, being more honored in the breach than in the observance.2 But if this is true, one may ask (as my students sometimes do), why do professors still teach the irreparable injury rule, and why do courts still invoke it whenever a plaintiff seeks an equitable remedy? And, perhaps more importantly, since courts of law and equity have long been merged in most jurisdictions, what justification (outside of tradition) can there be for continuing to distinguish between legal and equitable remedies in such a manner? It is in providing an answer to these tough and persistent questions that Samuel Bray’s article, The System of Equitable Remedies, makes an important contribution to the field.

Professor Bray argues that conventional wisdom—which maintains that “the distinction between legal and equitable remedies is outmoded and serves no purpose”—is wrong (P. 530), and that there are good reasons (though rarely articulated by courts) for continuing to distinguish between legal and equitable remedies (P. 533). Specifically, Bray argues that equitable remedies, far from operating as an antiquated counterpart to legal remedies, should be understood as an integrated system made up of three distinct but “logically connected” (P. 534) components: (1) the equitable remedies themselves (e.g., injunctions, constructive trusts), (2) the equitable managerial devices for administering these remedies (e.g., allowing courts to enforce injunctions via the contempt power or to modify and/or dissolve them to reflect changing circumstances), and (3) the equitable constraints to prevent such remedies from being abused (e.g., by allowing the purported wrongdoer to assert such equitable defenses as estoppel or laches).

Although it might seem difficult to justify the jurisdictional boundary between legal and equitable remedies when we are considering only the first-order problem of deciding what remedy to award an aggrieved party—after all, why should an injured party be required to satisfy the irreparable injury rule to get specific performance if that remedy would best protect the party’s expectation?—Bray makes a strong case for doing so when we also take into account “the second-order policy problems that arise from solving the first-order ones: i.e., the additional need to manage compliance and constrain abuse.” (P. 534.) This is largely because courts cannot always afford complete relief to an aggrieved party by simply forcing the wrongdoer to perform a simple and clear-cut act (such as awarding a legal remedy like requiring a wrongdoer to pay money damages or return stolen property). Instead, courts sometimes must require the wrongdoer to perform (or refrain from performing) a more complex action that must be monitored and enforced over time if it is to be effective. Where this is so, courts must not only be given the power to select the most appropriate remedy for a given situation (component #1), but, for this remedy to be effective, courts must also be given the ability to select the most appropriate tools for monitoring the wrongdoer’s compliance with the remedy (component #2) while preventing the aggrieved party from abusing these remedies (component #3). (P. 562.)

For instance, imagine a wrongdoer (“W”) has inadvertently built a retaining wall trespassing on victim’s (“V”) property. Turning to the first component identified by Bray, it seems clear that there would be a number of instances in which it would be more appropriate to enforce V’s rights with an equitable remedy like an injunction (forcing W to remove the retaining wall) instead of a legal remedy like money damages (forcing W to pay for the value of the land taken), in part because it seems inappropriate to force V to involuntarily sell part of his land to W, and in part because we don’t know how much V would have charged W for the land in a voluntary transaction. This much is obvious.

Where Bray’s article really shines is in showing us that, for the court’s injunction to be effective, the court must be able to draw upon the equitable managerial devices (component #2) to effectively police W’s behavior, due to the fact that a lot can go wrong between the time the order is issued and complied with. For instance, W might misunderstand the court’s injunction as requiring him to remove only the retaining wall (but not the footings), or perhaps W might inadvertently destroy an original wall on V’s property while removing the retaining wall. In either case, the equitable remedy can be effective only if the court retains the ability to manage W’s compliance (e.g., through the power of contempt, or by making adjustments to the language of the injunction). Finally, turning to Bray’s third component, it is important for the court to ensure that these remedies—which are extremely powerful, in no small part because they are enforced by the power of contempt—are not abused and “exploited by a wily litigant” (P. 572) seeking to use them in an inequitable fashion.

For instance, suppose V sat by and observed as W inadvertently built the retaining wall on V’s property, and that the wall, once built, turned out to be very costly to remove. Despite W’s wrong, wouldn’t we want courts to take into account V’s knowledge of W’s action (component #3) before deciding upon the most appropriate remedy (component #1), especially since W may be found in contempt for failing to comply with a court order requiring W to remove the retaining wall (component #2)? In short, Bray convincingly shows that each component in the equitable system operates together, and must be considered together, if the equitable remedy awarded by the court is to be effective and just. As pithily summed up by Professor Bray, “the equitable remedies need the managerial devices; the equitable remedies and managerial devices need the constraints.” (P. 534.)

In suggesting that we think about equitable remedies as part of a single system made up of these three logically related components, Professor Bray has not only provided a rational justification for the current system, but has helped explain why, even long after the merger between courts of law and courts of equity, the distinction between legal and equitable remedies remains alive and well. I, for one, have never thought about equitable remedies in quite this way before, and look forward to exploring this insight with my remedies students over the next semester.

Editor’s note: for another review of The System of Equitable Remedies please see Caprice Roberts, Staying Power of Equity, also published today.



  1. Douglas Laycock, Modern American Remedies 381 (4th ed. 2010). []
  2. See id. at 391 (“My claim that the rule is dead can be stated less dramatically as a claim that whenever the choice of remedy matters to plaintiff, the rule is satisfied.”). []
Cite as: Marco Jimenez, Justifying the Law-Equity Divide, JOTWELL (June 16, 2016) (reviewing Samuel Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016)), http://lex.jotwell.com/justifying-the-law-equity-divide/.
 
 

Staying Power of Equity

Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

Let equity lure you with its sirens. Equity, first developed by the Court of Chancery, is vital to the law of remedies. It affects a range of rights, remedies, and defenses from public to private disputes. It cannot be forgotten, ignored, or fully merged. The trend, however, is to streamline equity. For example, Douglas Laycock has argued we should move beyond the law-equity divide, and Doug Rendleman has advocated fusion and functionalism for reasons that I separately have acknowledged: equity generates friction and confusion, especially regarding restitution and unjust enrichment. Sam Bray’s The System of Equitable Remedies refutes this movement. Bray instead argues that equity remains distinct from law and comprises its own system that is pervasive, rational, and useful.

I agree: equity is alive and well in America. It is not simply federal and state constitutional rights to jury trials keeping the divide relevant. Federal and state courts keep equity in play in statutory and common-law cases—from ERISA to contracts, environmental law to trade secrets, and beyond. Equity soldiers on, despite law schools’ dropping the Equity course and despite the merger of law and equity in almost all courts and the Rules of Civil Procedure. Complete merger remains elusive. Where law fails or falls short, the pull of equity is greatest. Equitable remedies are key where money substitutes provide inadequate protection. Bray bluntly states the need: “There must be some way for courts to compel action or non-action.” Overall, Bray’s work requires readers to stop and think before dismantling the distinct system of equity.

Equity raises fear in the minds of many. At worst, equity connotes unbridled, whimsical, illogical discretion that lingers too long with vast consequences to parties and nonparties. At its best, equity fosters fairness; the risk, however, is palm-tree justice. Equity also requires judicial oversight, which may be costly and challenging. Further, complete merger might streamline complex, arcane, and unnecessary barriers to equitable devices. But equitable discretion is vital to rights and remedies. Principled discretion is indispensable to the continued survival and success of equity. As to the fear of unbridled discretion, Rendleman articulates a path for judicial restraint in applying equity: “[a] judge’s discretionary decisionmaking ought to yield to her attention to rules, precedents, and standards keeping her pragmatic eye on consequences.”

Despite equity’s pitfalls, Bray persuasively shows that equity is an interlocking system and, more importantly, a rational, useful one. He maintains that the “very act” of classifying remedies as legal or equitable “helps maintain the system of equitable remedies.” Weaknesses, however, range from functional to substantive: equity maintains a divide that increasingly eludes modern understanding and potentially blocks relevant equitable doctrines and remedies from actions at law and vice versa. Henry Smith argues for equity to play a limited role guarding the formal rule of law against opportunism. Bray maintains that law-equity divide has “presumptive rationality” though rebuttable, as the utility of equitable concepts crossing the divide “is always open to argument.” He rejects Laycock’s characterization of the divide as “a dysfunctional proxy for a series of functional choices”; instead he sees a “good proxy.” Bray emphasizes equity’s essential function: “how judicial institutions help put a wronged plaintiff back in his rightful position.”

It is this fundamental thrust that (i) answers why full merger of equitable remedies is unsolvable given constitutional jury trial rights; (ii) provides a presumptive justification for a controversial line of Supreme Court cases that reinforce the distinction solely by appeal to tradition—what Bray provocatively explores elsewhere; and (iii) offers a fresh angle on the inadequacy-of-law prerequisite for equitable remedies, which despite Laycock’s declaration of its death, Bray sees as “well established in judicial practice,” reinforcing a “habit of classification” that aids the preservation of the system of equitable remedies.

Equity lives on in multiple dimensions: in the Supreme Court’s original jurisdiction and certiorari docket, from fiduciary duties to intellectual property, and throughout state and lower federal courts. Bray’s work focuses on courts’ continued use and categorization of equitable remedies, including injunctions, specific performance, quiet title, constructive trusts, accounting for profits, and more. As Bray reminds readers, the interconnectedness of equitable doctrines causes equitable remedies to work more effectively. The system provides limits through “equitable managerial devices,” such as contempt tools and devices to handle unexpected complexities, as well as “equitable constraints” that “guide the responsible exercise of judicial power.” Still, as Bray foresees, skeptics wonder: if these equitable tools and restraints work so well, why not extend them to legal remedies? Isn’t this especially apt now, because in a merged system, the judge will have knowledge of equitable doctrines that might aid a jury’s application of legal remedies? Bray’s defense of the imprecise line as “good proxy” is fair enough. But requiring a better rule is less compelling because the divide may fall through natural degradation, continued fusion, and increasing confusion. True, though the common law is not designed to effectuate dramatic change, we would be wise to bolster student, lawyer, and judicial understanding of equity’s power and constraints.

Bray also forecasts a confusion critique for using the label “equity” but opts again to stick with what we’ve got. In the same vein, the Restatement (Third) of Restitution and Unjust Enrichment maintains use of the misunderstood word “restitution.” It remains unclear if continued efforts to educate and clarify such concepts as equity and restitution can carry the water we hope. Still, in my opinion, both equity and restitution (its equitable and legal components) have staying power.

Bray helpfully details how equitable remedies remain distinct from legal remedies such as damages, mandamus, habeas, replevin, and some restitutionary relief. According to Bray, nonmonetary legal remedies that mimic equitable orders are not equitable because they are narrow, not open-ended or indeterminate. As Bray shows, courts cling to the distinction and numerous consequences flow. Equitable remedies remain the most powerful weapons for halting violative behavior, ordering corrective behavior, and deterring opportunism. To do so, judges need flexibility to “achieve the plaintiff’s rightful position,” as Bray aptly notes. With flexibility comes equity’s potential for imperfect correlation between right and remedy. Though it will not satisfy tight doctrinal tracking, Bray sees bounding in the “habit and range of motion that is conducive to managing the parties.” Either way, Bray helpfully defends why equitable range exists and remains necessary. Scholars should keep a close eye on principled reasoning to justify flexible expansions so the equitable remedy is sufficiently tethered to the right even if not precisely correlative.

Equity warrants deeper study. All combined, “the remedies and the remedy-related rules” constitute a system of equity in American law. Whether Bray convinces readers to reinforce the law-equity divide, he reminds us that such a distinct system of equity remains and convincingly demonstrates that if we forget the doctrines, lessons, and tools of equity, something meaningful will be lost.

Editor’s note: for another review of The System of Equitable Remedies please see Marco Jimenez, Justifying the Law-Equity Divide, also published today.

Cite as: Caprice Roberts, Staying Power of Equity, JOTWELL (June 16, 2016) (reviewing Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016)), http://lex.jotwell.com/staying-power-of-equity/.
 
 

Getting it Wrong on Right to Counsel, By the Numbers

Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 64 U. Pa. L. Rev. 1 (2015).

I admit it. I’m a data geek. Not that I produce any of it myself—regression analysis makes my hair stand on end—but I am really good at admiring the work of people who are really good with data. And the data I really like (lots) sheds light on issues we all really care about. Presumptuous of me, you might think, to think I know what you care about. But don’t you care about lawyers?

You will, if you don’t, after you read Ingrid Eagly and Steven Shafer’s A National Study of Access to Counsel in Immigration Court. Before delving into it, recall Judge Richard Posner’s less-than-oblique critique of the immigration bar in 2015:

There are some first-rate immigration lawyers, especially at law schools that have clinical programs in immigration law, but on the whole the bar that defends immigrants in deportation proceedings … is weak—inevitably, because most such immigrants are impecunious and there is no government funding for their lawyers.

Eagly and Shafer begin where Judge Posner left off—with the story of the momentum toward establishing a first-rate public defender system for poor immigrants facing deportation. Judge Robert Katzmann, Peter Markowitz, Stacy Caplow, and Claudia Slovinsky led the most prominent of these efforts, which culminated in the New York Immigrant Family Unity Project. That project provides detained New Yorkers with representation in removal proceedings at state expense. And what convinced the New York state legislature to support such a scheme, aside from Judge Katzmann’s gravitas and Stacy Caplow and Peter Markowitz’s irresistible charm?

Data.

The Study Group on Immigrant Representation that Judge Katzmann convened (and on which sat some of the law school clinicians that Judge Posner excepted from his critique) found that 60 percent of New York’s detained immigrants did not have legal representation. Of that unrepresented 60 percent, only three percent won in court, in contrast with a 74 percent success rate for the non-detained represented population. That data was critical to convincing the New York state legislature that it was worth ponying up the $500,000 for a pilot program to provide appointed counsel for New Yorkers in removal proceedings.

The program and the data, however, are confined to New York. The debate about appointing defense counsel for immigrants is national. The cost-benefit analysis of whether to institute government-appointed removal counsel has been heavy on the cost side (lawyers are not cheap), and light to helium on the benefit side (do lawyers increase accuracy and efficiency in immigration cases?).

There is no shortage of information about the cost of erroneous outcomes in immigration court—the social and economic costs of unnecessary detention and erroneous removal include the rending apart of families, etc. versus the cost to society of erroneously granting immigration relief.

But there has been a scarcity of national information about the benefits of government-provided deportation defense counsel. In other words, if noncitizens already can obtain affordable counsel, or are able to obtain accurate outcomes without lawyers, then the debate is merely sound and fury. Until now, we have had no way to know.

Eagly and Shaffer fill this cavernous ignorance. Theirs is the first national study of the difference that immigration lawyers make, and it’s powerful medicine. They examined (with the help, I can only assume, of everyone they know) over 1.2 million deportation cases decided between 2007 and 2012. Two percent (2%) of the studied noncitizens obtained pro bono representation. Thirty-seven percent (37%) overall obtained a lawyer. What was the difference that a lawyer makes? Not obvious to a layperson (especially one unversed in the complexities of U.S. immigration law) is that the most salient issue in immigration cases is not whether a deportability ground applies. Instead, most cases rise and fall on relief from an applicable deportability ground. And if you don’t ask for relief, odds are that good that you won’t get it.

Representation makes a difference, it turns out. Noncitizens with representation were fifteen times more likely to seek relief in immigration court, as compared to those without counsel. And the odds were five and a half times greater that immigrants with counsel, as opposed to those without, obtained relief from removal.

That’s great for the individual noncitizens, and their friends and family and anyone else who would have had to (a) exist, and (b) support them in order for their bid for relief to be successful. But what’s in it for everyone else, like U.S. taxpayers?

For one thing, representation is efficient. Here’s what they found:

[I]nvolvement of counsel was associated with certain gains in court efficiency: represented respondents brought fewer unmeritorious claims, were more likely to be released from custody, and, once released, were more likely to appear at their future deportation hearings.

But Eagly and Shaffer don’t stop there. They were curious about what factors affect the level of representation and what barriers might exist. There are three: detention, geography, and nationality.

The nationality figures are striking. We knew that Mexicans were by far the largest nationality group in removal proceedings. We might have suspected that they were also the least likely to be represented by counsel. But check out this disparity: Only 21% of the 574,448 Mexicans in removal proceedings had an attorney. “In sharp comparison,” say our authors, “the 40,397 Chinese placed in removal proceedings were represented in 92% of the cases.” And those are just the Mexicans who had access to immigration court, rather than experiencing administrative removal.

Recall that 37% national representation rate? That number drops to 14% for detained immigrants. Consider the fact that almost one-third of detained cases are adjudicated where most detention centers are located, in rural areas and small cities where immigration attorneys are in short supply, and you end up with facts like these:

The highest detained representation rate of 22% was in El Paso. The lowest—a shocking .002% over the entire six-year period of our study—occurred in Tucson, Arizona. We investigated further and learned that immigration judges in Tucson utilize a “quick court” in which expedited hearings are held in Border Patrol detention stations and judges’ chambers. The end result is the lowest representation rate in the country and lightning-fast processing times (97% of detained cases in Tucson were processed in one day).

Even Dr. Who couldn’t prepare for a removal hearing in that nick of time.

Here’s my one beef with this piece: the authors are a bit too mellow about the significance of their work. They state: “This research provides an essential data-driven understanding of immigration representation that should inform discussions of expanding access to counsel.”

That statement is not wrong. It’s just incomplete. The rest of it should read “and therefore our study should be airdropped on Congress and every state legislature in the country.” Some of them will like it. Lots.

Cite as: Juliet Stumpf, Getting it Wrong on Right to Counsel, By the Numbers, JOTWELL (May 30, 2016) (reviewing Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 64 U. Pa. L. Rev. 1 (2015)), http://lex.jotwell.com/getting-it-wrong-on-right-to-counsel-by-the-numbers/.
 
 

Rethinking International Law’s Responses to Refugee Flows

Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 Minn. L. Rev. 687 (2015).

Over the past few months, the world has been transfixed by the flows of Syrian refugees pouring into Europe. These mass movements were, of course, preceded by much larger populations fleeing Syria for neighboring countries such as Jordan, Lebanon, and Turkey; at last count, four million Syrians resided in these three states. Though international law mandates protection against refoulement, or return to Syria, for those who fit the definition of a refugee, the UN Refugee Convention says nothing about who should bear the costs of protecting these refugees. This is the gap that Tendayi Achiume seeks to fill in her forthcoming article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.

The question of global cost-sharing for refugees is ground well-trod, perhaps most famously by Prof. Peter Schuck in his 1997 article, Refugee Burden-Sharing: A Modest Proposal. That controversial piece has since framed the debate around the topic. Prof. Achiume steps into this arena with a novel and provocative proposal: to leverage the international legal doctrine known as the Responsibility to Protect (RtoP) in order to frame international coordination around and equitable cost-sharing for refugees. Perhaps best known as the doctrine that enabled humanitarian intervention in Libya, RtoP is not without its critics, as Prof. Achiume readily acknowledges. Her article suggests using RtoP as a tool to address the free rider problem in responding to mass refugee flows while at the same time viewing the situation of Syrian refugees as a tool to rethink potential uses of RtoP on the world stage. Making this case is not a task for the faint of heart; Prof. Achiume’s combination of boldness and fine-grained attention to each layer of her complex argument will manage to convince even the most skeptical of readers to rethink their views of refugee cost-sharing and RtoP.

Prof. Achiume frames the situation in Syria as a problem of inequitable distribution of resources rather than a lack of resources. The primary responsibility for supporting Syrian refugees has fallen on its neighbors, who simply cannot bear the burden alone. Lebanon, which has been the hardest hit by the Syrian situation, now hosts approximately one million Syrians, a full quarter of its population. Yet donor countries have failed to provide adequate assistance; as of May 2015, the UN High Commissioner for Refugees’ Syrian Regional Refugee Response Plan, focused on assistance to Egypt, Iraq, Jordan, Lebanon, and Turkey was only 20% funded – one explanation for the large secondary flows of Syrians into Europe last summer. Prof. Achiume suggests that international law should frame international assistance for these refugees as obligatory rather than charitable in order to encourage the more equitable distribution of resources.

That law is of course nowhere to be found in the UN Refugee Convention, which studiously avoids the topic of mass influxes of refugees, let alone resources for addressing such flows. Rather than resuscitating the overused and threadbare argument that the Refugee Convention should be amended or otherwise updated to include such obligations, Prof. Achiume offers a novel insight: the situation of refugees is governed by multiple legal regimes. We can therefore locate elsewhere in existing international legal structures the obligation to equitably distribute resources to protect refugees.

Prof. Achiume steers the reader towards a particular structure: RtoP. This international legal doctrine, endorsed by UN member states and the UN Security Council, consists of three pillars. Pillar One focuses on a state’s obligations to its population; Pillar Two on the commitment of the international community to help states meet their Pillar One responsibilities, largely through international assistance and capacity-building; and the infamous Pillar three, which lays out the international community’s commitment to respond when a state “manifestly fails” to fulfill its responsibilities under Pillar One, first using pacific and, if those fail, coercive measures. The article focuses on Pillar Two and the role it could play in addressing the situation of Syrian refugees.

As Prof. Achiume recognizes, an RtoP approach is both less and more protective than an approach grounded in international refugee law. RtoP protects populations against only four relevant crimes: genocide, crimes against humanity, war crimes, and ethnic cleansing. While refugees fleeing Syria will be covered by this definition, in other scenarios, refugees who fall within the scope of the UN Refugee Convention definition will not be protected. But RtoP holds tantalizing promise, as Pillar Two is not territorially limited: it protects populations without regard to their geographic location. As long as they face a risk of RtoP crimes, refugees fall within the scope of RtoP wherever they are. Thus RtoP offers space for a nose under the tent of sovereign territoriality, a move that is all too rare when it comes to the movement of people under international law.

Prof. Achiume ends the paper with specific suggestions for implementing an RtoP approach, leveraging theoretical critiques of RtoP to design routes around the political roadblocks. She suggests that the UN Security Council could use its Chapter VII mandate to “maintain or restore international peace and security” to mandate compliance with a Comprehensive Plan of Action designed by the United Nations High Commissioner for Refugees. This is a creative approach, but the paper only gets more interesting from here. Taking on board the arguments of critical and realist skeptics, Prof. Achiume recognizes that both northern and southern states must support an RtoP approach for it to succeed. This is where refugee cost-sharing can revive RtoP – by prioritizing non-coercive measures, the doctrine could win the support of middle powers and southern states. This move also puts northern states in a double-bind; after supporting coercive action in Libya, they are hard pressed to reject non-coercive action. If they do, it will be clear that RtoP is simply, in Prof. Achiume’s words, “a Trojan horse for coercive foreign intervention.” In other words, this approach serves an information-forcing function that is useful regardless of the outcome. Substantively, northern states might also view the benefits to regional and international security as well as migration management from such an approach as in their self-interest.

Prof. Achiume’s article pushes the envelope in numerous exciting directions, not least by describing a mechanism for progressive development of international refugee law that does not require the drafting of a new treaty. While readers may quibble with some of its most ambitious proposals, the piece pushes the engaged reader to re-think deeply-held beliefs about refugee law and RtoP. This is exactly what the best scholarship should do.

Cite as: Jaya Ramji-Nogales, Rethinking International Law’s Responses to Refugee Flows, JOTWELL (May 16, 2016) (reviewing Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 Minn. L. Rev. 687 (2015)), http://lex.jotwell.com/rethinking-international-laws-responses-to-refugee-flows/.
 
 

Can “Legitimate Expectations” Ever be “Rights”?

Florian Dupuy & Pierre-Marie Dupuy, What to Expect from Legitimate Expectations? A Critical Appraisal and Look into the Future of the ‘Legitimate Expectations’ Doctrine in International Investment Law, in Festschrift Ahmed Sadek El-Kosheri: From the Arab World to the Globalization of International Law 273-298 (Mohamed Abdel Raouf, Philippe Leboulanger, & Nassib G. Ziadé eds., Kluwer 2015).

The trouble with the amiable practice of collections of essays in honor of admired scholars is that they are so often published in a stand-alone volume rather than in journals of record, with the result that they may be lost to all but initiates who happen to know of its existence. In the just-published Festschrift for Professor Ahmed Kosheri, the preeminent Egyptian international lawyer of his generation, this pearl of an essay deserves a better fate. It addresses fundamental issues with respect to the degree of legal stability to which a foreign investment is entitled from a host state in light of the instruments applicable to its entry, and suggests broad guidelines to resolve the hesitations of the caselaw to date.

The authors are a father-son team of French authors, each exceptionally erudite and polyglot. Florian, the son, holds degrees from three major law faculties (Paris, Humboldt, and Cambridge). In 2007, he presented a thesis for joint recognition by Paris (Panthéon-Assas) and Humboldt which is of direct relevance to this joint contribution, entitled La protection de l’attente légitime des parties au contrat – Étude de droit international des investissements à la lumière du droit comparé. Pierre-Marie has for long been one of the bright stars on the firmament of international legal scholars and prominent among the lawyers who practice before the International Court of Justice. He has also served as arbitrator on tribunals deciding important disputes between states and foreign investors arising under bilateral investment treaties and thus applying the law referred to in their title.

This is precisely the kind of writing that attracts those of us who like to spend our lives indolently ruminating on fundamental (and thus never-resolved) questions, criticizing legislators and judges who stumble around in the land of Ad Hoc, and leaving our more industrious colleagues to “analyze,” “synthesize” and “restate” the indigestible torrent of rules produced by our rulers.

The central basic questions here asked by the Dupuys is whether a “subjective hope” could ever be a legally enforceable right. Is it nothing but a possibly relevant criterion for examining the performance of an obligation to act in good faith? Is the expression at all useful?

As a matter of legal philosophy, legitimate expectations can be seen as the ultimate fundament of law. A morally neutral legal system can be of significant value to its subjects; an amoral but predictable dictator may be preferable to chaos. And so the respect for legitimate expectations may be a requirement for a rule of decision to qualify under a conception of law, but this is not the authors’ subject, which is at one level lower of abstraction: are we looking at a meaningful rule of decision? If not, it can only lead to confusion.

International arbitrations involving claims brought by foreign investors under treaties is a phenomenon of recent vintage — its origin less than three decades in the past. The cases often involve the tension between a state’s insistence on its authority to adapt its rules to the public interest and an investor’s insistence on a right to rely on a regime which induced it to invest (and was perhaps specifically implemented to have that effect).

As the authors say, one should eschew the use of the expression in a tautological sense; to say that an investor has a legitimate expectation to “fair and equitable treatment” is as useless as saying that all citizens have such an expectation to the performance of contracts. One is already explicitly articulated in a treaty, the other in national law. “The doctrine of ‘legitimate expectations’ is about what the investor is concretely entitled to expect from the host state under the specific circumstances of a case, not about reiterating the state’s general obligations flowing from the terms of the applicable treaty.” (P. 275.)

If the reasonableness of expectations are given weight in the application of a rule of decision, it must be because it is derived from a “social environment.” The diamond market in Antwep, one reasonably supposes, is different from the souk in Casablanca. More broadly, general commercial usages may differ depending on the institutional maturity and orderliness of any national community. Do shared expectations exist in a field as broad as that of the “community” of actors who have a stake in the network of several thousand investment treaties? Or does each treaty constitute its own environment?

Looking first at comparative law (a discipline with which the Dupuys are well conversant, notwithstanding the primary association of their name with international law), the authors note that the need for limits on the revocability of administrative acts have been broadly recognized, often in ways that parallel the notion familiar to the common law principle of estoppel; the expectation must have been generated by a public authority, the change in policy must have been unpredictable, there must have been detrimental reliance, and the expectations must not compromise a compelling public interest (this last qualification being true for all areas of law but most directly in the center of debates about acts of public administration).

Some national legal systems have developed complex (and more or less useful) conceptual frameworks for the state’s liability for particular detrimental consequences of regulatory change on economic actors, designed in the French expression to achieve an approximation of l’égalité devant les charges publiques. Compared to the body of law and scholarship that have emerged from generations of struggles with the intricate tensions that emerge from the infinite variety of acts of administration, the corresponding state of the “international investment law” referred to in the authors’ title, the latter may seem embarrassingly rudimentary. That should be not be surprising, and not only so because it is in statu nascendi; it is inconceivable that an international consensus would coalesce around detailed solutions derived by one system of national law.

Moreover, we have no world parliament to draft planetary federal regulations. Treaties tend to be expressed in general terms. It is exceedingly rare for the ICJ to be seized of an investor/state dispute à la Barcelona Traction. We must look to the reasoning and the outcomes produced by international arbitral tribunals. The first generation of awards was a mixed bag, as the Dupuys show.

Some tribunals yielded to the impulse to demonstrate their mastery of the obvious, for example in stating that a remedy will not be provided for the “mere frustration of hopes.” But then when does treaty protection of foreign investment begin? The cases include such unhelpful pronouncements as the notion that what is required is the “active inducement of a quasi-contractual expectation.” This suffers from the double flaw of mysteriousness and incoherence with the fundamental idea of investment-protection treaties: (i) “quasi-contract” is not a term known to international law, nor indeed to many national legal systems, and (ii) the very notion of requiring a contractual foundation for causes of actions seems to be a reversion to a past epoch when international tribunals competent to deal with investor claims were, apart from instances of home-State espousal of claims via diplomatic protection, those arising under “state contracts” directly concluded between State and the few private investors who had the wherewithal to enter into a bilateral relationship at that level.

The authors have little difficulty demonstrating that the early decisions included some awards which had more bark than bite, as though arbitrators first settled on concrete outcomes which may have been perfectly justifiable, but then yielded to the temptation of adorning them with unreliably over-broad general pronouncements, e.g. suggesting without qualification that the stability of the legal regime prior to the entry of a foreign investment is an essential component of the familiar treaty promise of “fair and equitable treatment.” This in turn encouraged some investors to make over-ambitious claims, and some states to tremble that they would succeed. But soon enough the mirage of such obiter dicta was dissolved by proper holdings which made clear that the stability of the investment regime, though a legitimate and important objective, was not necessarily decisive in establishing obligations under the treaty; the countervailing interest of the respondent state to make adaptations in the public interest may prevail.

And so investors failed, for example, to convince arbitrators that a respondent state was without more liable for (a) for changes in caselaw, (b) failing to freeze specific laws and regulations affecting investments, and even (c) enacting fundamental reforms provided they are not “arbitrary or grossly unfair or discriminatory.”

The starting point for anyone coming new to these debates and wishing quickly to separate the intellectual wheat from the chaff will do well to press “fast forward” and take as a starting point the decision handed down in 2008 by a unanimous tribunal headed by Sir Arthur Watts QC (who served as a legal adviser in the British Legal Office from 1956 to 1991 — ending up as its chief — and among whose weighty scholarly contributions was his co-authorship with Sir Robert Jennings, a former President of the ICJ, of the ninth edition of Oppenheim’s International Law) in the case brought by the Nomura banking group in response to the Czech Republic’s treatment of its investment in that country’s third largest bank. The award was in favor of Nomura (more precisely its investment vehicle, named Saluka) in the circumstances of the case, and led to a substantial payment by the State without the need for measures of compulsory execution, but its general account of relevant principles were measured and cautious, as in this prominent passage quoted by the Dupuys:

No investor may reasonably expect that the circumstances prevailing at the time the investment is made remain totally unchanged. In order to determine whether frustration of the foreign investor’s expectations was justified and reasonable the host State’s legitimate right subsequently to regulate domestic matters in the public interest must be taken into consideration as well.” [Saluka Investments B.V. v. Czech Republic, 305, UNCITRAL Award (2006). Disclosure: the present author was, alongside Professor James Crawford SC, now a judge at the ICJ, one of Saluka’s advocates.]

In the wake of this decision, as the authors show, further cases have made established that BITs do not prevent their signatories from amending legislation to adapt to change in the “normal exercise” of their prerogatives.

Where does this leave the balance, since the preceding sentence obviously does not have the effect of rendering thousands of BITs so many words writ on water? The proposition that expectations of stability are “protected to the extent that the investor has been led to believe that specific regulations would remain unchanged for a certain period of time” (p.291) leaves many questions unresolved by the body of decided cases. In particular, can states “create legitimate expectations without explicit promises”? Who bears the risk of ambiguities in the wording of governmental declarations which may have created expectations in the minds of investors? Must such representations have been made directly to the claimant? Is a claimant’s own conduct relevant to the assessment of the legitimacy of its expectations?

The authors suggest three criteria as critical in weighing the consequences of expectations of stability: the presence of explicit commitments to stable rules, the severity of the imperatives of public policy which motivate subsequent regulatory change, and the degree of alteration of the relevant legal framework thereby caused.

They suggest a number of important “grey areas” that will continue to pose challenges. For example, while there can be no expectation of the absolute stability of the legal framework, and investors may held to a level of understanding and due diligence with respect to the prospects of legislative change in a given environment, there comes a point where the magnitude of the particular detriment caused to the investor makes it intolerable for the change to the imposed without compensation.

Similarly, the nature of implicit representations made to the investor may be “considered equivalent to a promise in the light of the circumstances”; consistency in the conduct of state organs is “an important element of the protection of legitimate expectations” (p. 293). Thus, in the case of Arif v Moldova, ICISD Case No. ARB/11/23, Award (2013), the invalidation of a lease to operate an airport duty-free concession was considered to have been unfair given that the lease had been concluded and approved by competent administrative authorities and the investor was allowed for a significant period of time to make the necessary investments and thereafter to operate the shops. And in Gold Reserve Inc. v Venezuela, ICSID Case No. ARB/04/01, Award (2014), in which the tribunal, on which Pierre-Marie Dupuy served as the Respondent’s nominee, awarded some $740m to the investor, the grant of a series of certificates of compliance and the continued failure to object to the investor’s activities were held to be incompatible with the sudden withdrawal of mining rights on the purely formal ground of a long-past failure to comply with time limits under the mining law.

The degree of clarity of the state’s representations is also a matter with respect to which it is difficult to generalize. If such representations were made in the context of incomplete information given by the investor, the latter is likely to have only itself to blame. But consider the award in Ioan Micula et al v Romania, ICSID Case No. ARB/05/20, Award (2013), where a number of incentives were retracted on the grounds that they were contrary to EU state aid law notwithstanding so-called permanent investor certificates that inter alia authorized those incentives for a stated duration. As might be expected, the difficult issue (with respect to which the arbitrators were divided, though not as to the outcome of the case) was whether a general tax incentive scheme was transformed into a commitment to the particular investor by dint of the certificate.

Finally, the potential significance of a lack of diligence on the part of the investor was illustrated by MTD Equity Sdn. Bhd. et al v Chile, ICSID Case No. ARB/01/7, Award (2004), where although the Government investment authority had triggered the government’s liability by authorizing a project which later was annulled because the land selected for the investment was zoned exclusively for agricultural use, the Tribunal reduced recovery by 50% on account of the investor’s failure to have conducted any investigations of its own.

All of this leads to a general conclusion that the notion of legitimate expectations, while not susceptible of serving as the basis of an autonomous cause of action, remains of great significance as a means of assessing compliance with the standard of fair and equitable treatment.

In this concise contribution, the Dupuys have exhorted us to organize our thinking and suggested a conceptual roadmap. Their essay does not so much inform us as it makes us reflect on the prospects of a more granular international consensus. Meanwhile, we might reflect that arbitrators earn their keep precisely by the quality of their reflection, and have no reason to follow unpersuasive precedents.

Cite as: Jan Paulsson, Can “Legitimate Expectations” Ever be “Rights”?, JOTWELL (April 19, 2016) (reviewing Florian Dupuy & Pierre-Marie Dupuy, What to Expect from Legitimate Expectations? A Critical Appraisal and Look into the Future of the ‘Legitimate Expectations’ Doctrine in International Investment Law, in Festschrift Ahmed Sadek El-Kosheri: From the Arab World to the Globalization of International Law 273-298 (Mohamed Abdel Raouf, Philippe Leboulanger, & Nassib G. Ziadé eds., Kluwer 2015)), http://lex.jotwell.com/can-legitimate-expectations-ever-be-rights/.
 
 

Responding to Takedown Requests for Digital Library Repositories

Brianna L. Schofield & Jennifer M. Urban, Berkeley Digital Library Copyright Project Report: Takedown and Today’s Academic Digital Library, U.C. Berkeley Pub. L. Research Paper No. 2694731 (November 2015), available at SSRN.

A recent push to provide increased access to research, scholarship, and archival materials, as well as a desire to provide greater visibility to faculty and institutional work, have driven more and more academic libraries to create online repositories. These repositories have successfully generated greater visibility for scholarly work and archival collections and greatly enhanced access to these materials for researchers. Greater visibility and access, however, also bring greater potential for requests that libraries takedown materials either because of intellectual property rights claims or other claims, such as privacy.

Schofield and Urban studied the experience of academic libraries hosting open access repositories and their experience with notice and takedown requests, both under section 512(c) of the Digital Millennium Copyright Act (“DMCA”) and otherwise. They used a survey and targeted interviews to investigate how often takedown requests are received, for what type of content, the basis of the concern, and how the library responded to the takedown request. Schofield and Urban go on to provide recommendations on how libraries should respond to these takedown requests. Their findings have been published in Berkeley Digital Library Copyright Project Report: Takedown and Today’s Academic Digital Library. (available at SSRN) and will be presented at The Future of Libraries in the Digital Age conference.

Establishment of accessible repositories has been on the rise as the issue of access to research, particularly publicly-funded research, has gained attention in academia and the press. Traditionally the academic publishing model has been one where the author(s) sign over rights to their work in exchange for publication. Academic libraries then pay substantial sums of money to gain access to journals, and other publications, in which the research is published. The open access movement gained momentum particularly in the hard sciences and there are now federal, and sometimes state, restrictions requiring that certain types of publicly funded scientific research are made openly accessible for no cost. In addition, some academic institutions have begun encouraging, or even requiring, faculty to publish research in an open access format. These trends have fueled, in part, the rise in academic digital repositories.

Section 512(c) of DMCA (17 U.S.C. § 512(c) (2014)) provides protection for an “online service provider” (“OSP”) for copyright infringement by a user of the OSP. Schofield and Urban note that libraries developing and maintaining online, publicly accessible repositories may meet the definition of an OSP under the DMCA and become subject to both its requirements and protections. However, the authors also point out that the safe harbor provisions are only available for content loaded by a third party, such as a faculty member or student. Libraries who manage academic digital repositories often load the content on behalf of the author. As Schofield and Urban emphasize, that step, when performed by the library, eliminates the protections of § 512(c) since the library, through a librarian or staff member, did the actual loading of content.

The study revealed DMCA takedown requests are currently infrequent, although their incidence could rise as repositories become more prevalent. More common were non-DMCA takedown requests. While some of these did arise from copyright claims, the most frequent reasons given were privacy, embarrassment, and defamation concerns. Schofield and Urban found that many of these non-DMCA takedown requests were handled on a case-by-case basis, depending upon the cause for complaint.

Although the respondent pool for the study was small, see the article for why, the findings are intriguing and indicate that librarian managers of these repositories should be developing best practices for handling takedown requests as they are likely to grow in number and frequency. Some of the recommendations from the authors, for both DMCA and non-DMCA takedown requests, include author education about preserving rights, publication agreement transparency, and development of best practices within the academic library community. As the Schofield and Urban report highlights, authors, publishers, and academic institutions are likely to find the incidence of takedown requests on the rise. Academic libraries, as the developers, managers, and curators of digital repositories, should be prepared to respond.

Cite as: Kristina Niedringhaus, Responding to Takedown Requests for Digital Library Repositories, JOTWELL (March 21, 2016) (reviewing Brianna L. Schofield & Jennifer M. Urban, Berkeley Digital Library Copyright Project Report: Takedown and Today’s Academic Digital Library, U.C. Berkeley Pub. L. Research Paper No. 2694731 (November 2015), available at SSRN), http://lex.jotwell.com/responding-to-takedown-requests-for-digital-library-repositories/.
 
 

Environmental Law and Justice in the Anthropocene Era

Angela Harris, Vulnerability and Power in the Age of the Anthropocene, 6 Wash. & Lee J. Energy Climate & Env't 96 (2014).

The future is the Anthropocene Epoch – or at least some geologists argue that human activities now dominate global systems like the oceans and climate in qualitatively different way in the past, justifying the identification of a new geological era. Certainly human impacts on climate change provide a strong example to support this claim. Legal scholars are only just now coming to terms with what (if any) significant implications the Anthropocene might have for our legal system.

One thing I particularly like about Angela Harris’ piece (Vulnerability and Power in the Age of the Anthropocene) is that it takes on the big question of whether and how the Anthropocene matters. Harris argues that the Anthropocene matters because in an era in which humans are changing global systems, there will be ongoing and major impacts on all humans, but especially the most vulnerable – in other words, changes in our global environment will have a particular salience for populations that have less political or economic power. After all, it is no accident that among the countries most vulnerable to the sea-level rise that is a product of climate change is Bangladesh, a poor and politically weak country where tens of millions of people may be displaced. As Harris notes, understanding how climate change affects those without political or economic political power is a key part of beginning a conversation about the relationship between the Anthropocene and critical legal theory.

A related major point that Harris makes is that human dominance of the global environment in the Anthropocene makes clear the interconnectedness of social and environmental decisionmaking. How we manage the global environment necessarily requires us to consider how we structure our societies and economies. Reciprocally, we cannot understand how our societies and economies function without understanding the role that the global environment plays in sustaining or impacting them.

Harris argues that accordingly we should identify two key principles of governance: One, that environmental protection and human rights are equal, joint, and indivisible components of just governance in the Anthropocene (the indivisibility principle); and two, that in making decisions about how to effectuate environmental protection and human rights, we should obey an anti-subordination principle that rejects oppression of any groups of humans, with a particular focus on historically oppressed populations such as racial, religious, and ethnic minorities.

I am excited about Harris’s connection of the future of environmental protection – as encapsulated in the concept of the Anthropocene – with issues of justice writ large. One problem for environmental protection in the twentieth century was the all-too-long delay between the initial development of the modern environmental movement, and engagement of historically oppressed groups that have born disproportionate environmental burdens. I hope that Harris’s piece is the beginning of ensuring that the difficult and important conversations we have about the environment in the next 100 years are more inclusive and more comprehensive.

As with any excellent piece, it raises questions about the next steps – questions that will be hard to answer. Here, I want to focus on one important follow-on question: Harris (rightly) places a strong emphasis on maintaining a critical, watchful eye to ensure that anti-subordination principles are not evaded in practice. Similar problems arise in the context of environmental decisionmaking – where human nature to focus on the short-term, the immediate, and the proximate leads us to downplay the long-term and large-scale implications of decisions, the implications that lead to environmental degradation. How can we ensure that environmental protection is not (effectively) made secondary to short-term economic pressures, particularly when economic growth can be framed as essential to meet the urgent need to raise billions out of poverty?

The importance of the question is highlighted by disputes in two countries that Harris identifies as leaders in trying to respond to the challenges of the Anthropocene: Ecuador and Bolivia. As Harris notes, both countries have enshrined in their laws and constitutions protection of the environment, broadly defined, and human rights, including indigenous populations. Yet both countries have also wrestled with contentious disputes about government-sponsored projects to extract fossil fuels from biologically significant forestlands, over the objections of many of the indigenous inhabitants of those lands. The legal frameworks these countries have developed are perhaps not (yet) adequate to satisfactorily resolve these disputes.

Harris’s indivisibility principle attempts to reduce the risk that environmental protection will come second to economic development. But I wonder if we can do more. Much of modern American environmental law can be understood as an effort to reduce the risks of backsliding, of restraining ourselves from actions that would help us in the short-term but harm us in the long-term. Tools such as citizen suits, prohibitions on cost-benefit analysis, mandatory decisionmaking timeframes, and limitations on political influence for decisions all can help advance this goal.

How might such a tool to restrict backsliding on both environmental and human rights grounds work? One example might be a cap on the cumulative health risks from environmental exposures that any one individual should have to bear. It is the cumulative impacts of individual decisions that sometimes weigh so heavily on poor and minority communities – and a cap would ensure that no one individual or community bears a disproportionate burden from society’s decisions. While implementation of such a cap raises a range of scientific and legal challenges, it is a project worth exploring. The State of California has already begun cutting-edge work in this vein.

This one brief example makes clear the importance of the conversation that Harris begins with her article. I look forward to hearing more from her on the topic.

Cite as: Eric Biber, Environmental Law and Justice in the Anthropocene Era, JOTWELL (February 18, 2016) (reviewing Angela Harris, Vulnerability and Power in the Age of the Anthropocene, 6 Wash. & Lee J. Energy Climate & Env't 96 (2014)), http://lex.jotwell.com/environmental-law-and-justice-in-the-anthropocene-era/.
 
 

Why Insurance Contracts Might be the Trick to Police Reform

Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets and Police Reform, UCLA L. Rev. (forthcoming 2016), available at SSRN.

How do lawsuits deter misconduct? That is an issue that Professor Joanna Schwartz has written about before, and her latest article on the topic, How Governments Pay: Lawsuits, Budgets and Police Reform, could not be more timely. Over the past year, our county has witnessed dramatic instances of police abuse and the public is understandably demanding reform. Schwartz’s terrific article explains why civil rights actions may fail to instigate reform, and suggests how insurance contracts, of all things, can play a role in fixing this problem.

To understand how lawsuits deter, consider a reckless driver. You know, the type that takes corners too fast, sends texts while on the interstate, and whips past school buses with flashing lights. What will it take for the driver to finally reform herself? Well, first of all, she’ll probably get a bunch of tickets. If she gets tired of paying the tickets and fears losing her license, she’ll probably start driving more carefully. Aside from the tickets, however, the driver may end up getting sued when her reckless behavior finally causes an accident. Even though her insurance company will likely pick up the tab for any judgment, the company is likely to jack up her premiums after it pays the damages. In the end, the driver’s recklessness is going to cost her a lot of money. And this will probably convince her to become a safer driver.

Compare the reckless driver to a reckless cop—the type that stretches the facts to get a warrant, is quick deploy her Taser, and sees probable cause underneath every hoodie. What will it take for the cop to reform herself? Do reckless cops get “tickets” like reckless drivers do? The answer is almost uniformly no. Misbehaving cops are rarely subject to criminal prosecution. What about a lawsuit, then? Just like drivers, cops don’t pay their own judgments; instead, it is the employer, acting as an insurer, that pays the judgment. If the civil rights actions work like tort actions, the employer/insurer will eventually decide to “drop” the insured by firing the reckless cop. And the cop (as well as her peers who witness this process) will decide to act more appropriately.

But that assumes an enormous question: do civil rights actions work like tort actions? To figure that out, we would need to know whether the party who has the power to fire the misbehaving officer is also the party who pays the judgment. If the police chief sees his budget depleted by a reckless cop, he is likely to take corrective action. But if the judgment is paid by a third party, and the chief never suffers any ill effects, it is far less likely that he will address the problem.

So who pays judgments and settlements in civil rights actions against police officers? This is what Professor Schwartz serves up in her new article. Using FOIA requests and an immense amount of less formal gumshoeing, Schwartz catalogued the ways in which 100 of our nation’s law enforcement agencies satisfy lawsuits against their officers.

Schwartz’s study is impressive in scope. She obtained data from 62 of the 70 largest law enforcement agencies in the country and from 38 small and mid-sized agencies. The agencies included large jurisdictions like Baltimore, Los Angeles and New York City as well as tiny hamlets like Waterloo, Nebraska (with only a single sworn officer). Some agencies operated at the state level (like the Maryland State Police), some operated at the county level (like the Polk County Sherriff’s Office in Florida) and some operated at the municipal level (like the Newark Police Department). All told, Schwartz’s study accounts for 26% of the nations 765,000 law enforcement officers.

It is difficult to do justice in this small space to Schwartz’s many findings, but here are three important takeaways:

  • Half of the agencies in her study were required to “financially contribute in some manner to the satisfaction of lawsuits brought against them.” (P. 3) Of course, this means that half were not required and it is fair to assume that those agencies faced little financial pressure to minimize lawsuits. (Schwartz is careful to note that, even if agencies do not face financial pressure, they may still face political pressure to reform themselves (P. 19).)
  • To the extent an agency is forced to bear some financial responsibility for a lawsuit, the responsibility will normally come in three forms: (1) the agency pays the judgments or settlements directly, (2) the agency makes regular contributions to a jurisdiction-wide fund, which in turns pays the judgments or settlements, or (3) the agency pays premiums to a private insurer, which then pays the judgments or settlements.
  • Most interestingly, even if an agency is required to bear financial responsibility for a lawsuit, the agency may not actually suffer any actual financial loss. Agencies often receive funding from their jurisdiction for litigation expenses. Thus, even if money is going out the agency’s front door to pay for legal costs, that same money is often coming in the back door as part of the agency’s annual budgetary allotment.

Schwartz’s most interesting insight, in my mind, is that “outside insurers may be better situated than self-insured jurisdictions to place financial pressures on law enforcement agencies.” (P. 37) Private insurers can, and presumably will, “condition low deductibles and continued coverage on personnel and policy changes.” But the leaders of a jurisdiction (such as a mayor or city council) will often find this option unappealing for two reasons.

First, imposing financial costs on a police department will almost certainly carry political costs for elected officials. Not every mayor will wish to face off with her police chief, even if the city budget can be trimmed a bit. Second, in large jurisdictions, any threat to withdraw funding for lawsuits would be empty. When a small agency loses insurance coverage and has to be dissolved (a phenomenon that Schwartz documents (P. 28-29)) the jurisdiction can often obtain law enforcement services from a neighboring jurisdiction. Large agencies, however, cannot cover gaps in enforcement in this way. The New York City Police Department, as Schwartz nicely puts it, is likely “too big to fail.” (P. 37)

If Schwartz is correct on this point—and it seems to me she is—then an interesting irony arises: outsourcing is often thought to decrease government accountability, but outsourcing here would seem to increase government accountability. This may suggest a larger truth here about outsourcing: where politicians are prone to ignore or minimize constitutional mandates, a private company, being guided by dollars and cents rather than politics, can force government to adhere to its constitutional obligations. The trick is to make sure company profits and constitutional adherence are positively correlated.

In sum, Professor Schwartz’s article is a large step forward in a field that has been operating on fuzzy assumptions for far too long. By bringing an immense amount of data to the table, the article will enable scholars and policymakers to move closer to the elusive goal of institutional reform.

Cite as: Jack Preis, Why Insurance Contracts Might be the Trick to Police Reform, JOTWELL (January 21, 2016) (reviewing Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets and Police Reform, UCLA L. Rev. (forthcoming 2016), available at SSRN), http://lex.jotwell.com/why-insurance-contracts-might-be-the-trick-to-police-reform/.
 
 

A Dormant Commerce Clause Approach to Interstate Electricity Transmission

Alexandra B. Klass & Jim Rossi, Revitalizing Dormant Commerce Clause Review for Interstate Coordination, 100 Minn. L. Rev. 129 (2015).

In a 2013 report, the American Society of Civil Engineers awarded the U.S. electricity grid the grade “D+” noting that aging components and limited maintenance contribute to a growing number of brownouts and blackouts. Indeed, the 450,000 miles of high-voltage transmission lines that connect America’s nearly 7,000 power plants with some 6 million miles of lower-voltage distribution networks are based on a grid architecture that dates back to the 1880s. The average transformer in the national power grid is 42 years old and, hence, two years past its projected useful life. Every year power outages cost the economy billions of dollars in lost output and wages, spoiled inventory, production delays, among others. Meanwhile, successful mitigation of global climate change urges the transition to a low-carbon energy economy fueled by solar, wind, and other renewables. But the best renewable resources are often located far from population centers, such as wind resources in the upper Midwest and Plains states or solar resources in the desert southwest. As a result, the U.S. electricity grid requires both modernization and expansion calling for $1 trillion of investment to maintain even current levels of grid reliability. In Revitalizing Dormant Commerce Clause Review for Interstate Coordination, professors Alexandra B. Klass and Jim Rossi take stock of the regulatory impediments to upgrading and expanding the electricity grid, and propose a fresh take on dormant Commerce Clause review to incentivize greater interstate coordination on long-distance transmission projects.

Notwithstanding the vast macroeconomic benefits of an upgraded and expanded electric grid, transmission lines remain highly unpopular and subject to strong “not-in-my-backyard” reactions – at the individual and institutional level alike. Drawing on a series of precedents, professors Klass and Rossi illustrate how states use their virtually exclusive authority over electric transmission line siting and eminent domain to block and, ultimately, defeat interstate transmission projects. “In the context of multi-jurisdictional energy infrastructure projects, a single state or local holdout can keep an infrastructure project from going forward.” Such regulatory holdouts are especially popular among “pass-through” states that often struggle to identify benefits to local constituents from transmission lines that originate and end out-of-state. In the words of Klass and Rossi, “interest group dynamic[s] along with many existing siting and eminent domain laws enable, and may even encourage, these kinds of state and local government holdouts.”

The article identifies three different patterns by which state regulation and, in some cases, legislation facilitate regulatory hold-outs. First, regulators may refuse to issue the required certificate of convenience and necessity based on a narrow assessment of the benefits associated with a proposed interstate transmission project. Second, regulators may refuse to grant eminent domain authority based on post-Kelo legislation or by requiring local need in order to establish “public use.” Third, regulation and/or legislation may limit the procedural rights of out-of-state applicants if not expressly ban them from transmission line siting permits or eminent domain authority in the state.

Professors Klass and Rossi make a compelling case for dormant Commerce Clause review as a doctrinal opening for courts to resolve state regulatory hold-outs – in electricity transmission and beyond. Building on the rich history of related jurisprudence, the article adds to the literature in at least two important ways. First, it revives the dormant Commerce Clause’s role as a catalyst not only for inter-state competition but, critically, also for coordination among states. Klass and Rossi draw on Rocky Mountain Farmers v. Corey to argue that coordination among state policies, as reflected in energy market initiatives that take into account out-of-state benefits, is allowed under dormant Commerce Clause doctrine and, in fact, “ought to be encouraged and, in some instances, required.” Second, the article calls on disfavored out-of-state applicants for electricity transmission siting and eminent domain to harness dormant Commerce Clause doctrine to challenge state legislation and regulation not only on substantive but also on procedural grounds.

In Revitalizing Dormant Commerce Clause Review for Interstate Coordination, professors Klass and Rossi offer a roadmap for states to better coordinate on multi-jurisdictional transmission projects and, where such coordination fails, devise an enticing litigation strategy for disfavored applicants based on a reinvigorated interpretation of dormant Commerce Clause doctrine. I, for one, look forward to seeing both in action.

Cite as: Felix Mormann, A Dormant Commerce Clause Approach to Interstate Electricity Transmission, JOTWELL (December 18, 2015) (reviewing Alexandra B. Klass & Jim Rossi, Revitalizing Dormant Commerce Clause Review for Interstate Coordination, 100 Minn. L. Rev. 129 (2015)), http://lex.jotwell.com/a-dormant-commerce-clause-approach-to-interstate-electricity-transmission/.
 
 

A Need for Equity in Immigration Law (Congress, are you listening?)

Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN.

In the late twentieth century, Congress amended the immigration laws to severely limit the power of immigration judges, the agency’s adjudicators, to grant relief from removal on equitable grounds. At the same time, Congress expanded the categories of activities that render a foreign national removable. The result of the statutory tinkering was that it was much easier to be removable and much harder to be granted relief from removal.

The severity of those reforms is well known. Professor Jason Cade’s contribution to the discussion is that he persuasively argues that those statutory reforms from twenty years ago are linked to the most visible controversy in immigration law right now:  President Obama’s executive actions creating the chance for a temporary reprieve from removal.

Through Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the executive branch has established criteria that agency adjudicators should consider in deciding whether to grant deferred action to an individual foreign national. Deferred action is a time-out from removal. It lets a foreign national know that he or she is a low priority for removal, but it does not erase removability, and provides no lawful immigration status. Deferred action is a revocable promise not to remove for a certain period of time. DACA is aimed at individuals who were brought to the United States as children but who do not have legal status. DAPA is aimed at parents of US citizens or parents of “green card” holders who do not have legal status.

Both DACA and DAPA are executive exercises of prosecutorial discretion. Congress does not appropriate to the executive sufficient funds to remove all 11 million individuals who are in the United States without permission. The executive prioritizes its removal efforts. DAPA has not been implemented, however, because a US District Court judge issued a preliminary injunction against it. According to the judge, DAPA violates the Administrative Procedure Act.

Professor Cade acknowledges this dispute about the legality of DAPA, but does not focus on it. Instead, Professor Cade ties DACA and DAPA back to those statutory reforms of the late twentieth century. His argument is that because Congress removed considerations of fairness and proportionality from the arena of immigration court adjudication, the pressure to inject equity into the system shifted to the executive officials who decide whether to begin removal proceedings. Back-end adjudicators used to be able to consider factors such as the nature of the offense, the length of residence and rehabilitation. Congress eliminated that kind of inquiry and replaced it with very high hurdles to cross to achieve cancellation of removal in immigration court. To Professor Cade, DAPA and DACA represent an effort to exercise prosecutorial discretion in a system where the “prosecutors”1 know that there is little chance for equity during adjudication. It is up to those deciding whether to place an individual in removal proceedings, then, to balance equities. If the initiation of removal proceedings surely will result in removal, then the executive branch may exercise its prosecutorial discretion to refrain from starting removal proceedings in the first place.

Professor Cade identifies several drawbacks to the status quo. He takes serious issue with the executive’s use of criminal history as a litmus test for whether an individual is worthy of prosecutorial discretion. Equity misses an entire population of foreign nationals, even if the encounter with the criminal justice system occurred tens of years ago and/or was a misdemeanor. Professor Cade argues that “some balancing should take place in individual cases, even for criminal aliens, in order for the removal system to be just.”(P. 45.) While Professor Cade acknowledges that it is good idea to give immigration enforcement agents the power to remove dangerous individuals, he stresses that “it does not follow that all removals of noncitizens with criminal history are justified.  . . . [N]ot all noncitizens with convictions or arrests are similarly situated.”(P. 45.)

Also, Professor Cade is uncomfortable with the inherent characteristics of what he calls “enforcement-based equity.”(P. 6.) He cites to the law enforcement bias of immigration prosecutors and their intense workloads as two reasons why equitable considerations and immigration enforcement are not a good fit. Professor Cade additionally observes that while equitable relief obtained from an immigration judge typically results in final, stable legal status in the United States, equitable relief obtained from an immigration prosecutor results only in a time out; it results in preservation of the status quo.

To ease the problems presented by enforcement-based equity, Professor Cade suggests statutory reform that would reinstate the ability of immigration judges to weigh equitable considerations in deciding whether an individual should be removed. This would release some of the pressure on front end enforcement officers, as there would be other avenues for equitable considerations to play a role. A parallel reform would be a statutory legalization program that would allow individuals to apply to become legal based on certain equities. This would shrink the pool of those eligible to be removed, allowing the executive to better focus on who of the remaining population should be removed.

I might dream a little bigger. I agree with Professor Cade that Congress stripped equity from the immigration court system and that we are feeling the repercussions. If there were a constitutional right to be with family, something akin to the Article 8 right to family life contained in the European Convention on Human Rights, then the entire analytical framework changes. Proportionality would become central to any decision to remove that involves the separation of family members. Congress would not be able to legislate away that kind of right. So far the Supreme Court has not acknowledged such a right, however.

Professor Cade is prudent to express his preferred solution, statutory reform, but at the same time to acknowledge that the congressional paralysis that has plagued immigration law reform likely will continue. In the absence of statutory reform, Professor Cade suggests that it will be up to executive exercises of discretion to inject equity into the removal process. He hopes that the executive branch continues to take seriously the burden Congress has placed on it by improving how it does so.

Congress, are you listening? It is time to reform the immigration statutes to inject equity back into the immigration court system. As Professor Cade observes, doing so not only would restore fairness to the system, but also would properly realign the equitable adjudication function to the immigration courts.

 



  1. Because immigration removal proceedings are civil, the government attorneys pursuing removal are not criminal law prosecutors. []
Cite as: Jill Family, A Need for Equity in Immigration Law (Congress, are you listening?), JOTWELL (November 10, 2015) (reviewing Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN), http://lex.jotwell.com/a-need-for-equity-in-immigration-law-congress-are-you-listening/.