Breaking the Deadlock in Bipartisan Election Administration

Jennifer Nou, Sub-Regulating Elections, Sup Ct. Rev. (forthcoming 2014), available at SSRN.

What should courts do when bipartisan agencies deadlock on an interpretation of a statute? That conundrum recently arose when the Election Administration Commission (EAC) addressed the meaning of the National Voter Registration Act (NVRA). Specifically, the EAC had to decide whether an Arizona requirement that voter registrants provide proof of their citizenship violated the NVRA, as a refusal to “accept and use” the federal mail-in registration form. The two Democrats on the four-person Commission found that the proof-of-citizenship requirement constituted a refusal to use the federal form while the two Republicans found that it did not. When the federal Court of Appeals reviewed the agency action, the judges seemed to have three options: Defer to the interpretation of the Democratic commissioners; defer to the interpretation of the Republican commissioners; or defer to neither and independently construe the statute. In this context of deadlock, there was no clear justification for deferring to either interpretation. Choosing to defer to one partisan interpretation over the other might subject the court to a Bush v. Gore-like charge of bias. But the decision to independently construe the statute would have had costs as well. It would have denied the court expert guidance in its determination of the meaning of the statute. None of the three options were particularly appealing.

In her innovative and illuminating article, Sub-Regulating Elections, Professor Jennifer Nou engages this problem of deadlock in election administration, and suggests a broad, creative solution. The two principal election agencies, the EAC and the Federal Election Commission (FEC), have similar designs in that they both have even numbered commissioners (four for the EAC and six for the FEC) with the two major political parties equally represented. In the current context of political polarization where decisions about the meaning of election statutes often have high stakes, the problem of deadlock has become endemic to election administration. One response would be to change the design of these commissions by making them odd-numbered or eliminating the requirement of partisan balance. But as Nou correctly notes, these design changes are unlikely anytime in the near future.

Nou instead proposes a novel solution to the problem of deadlock. This solution is responsive to what she sees as the failures of the prevailing judicial approach to agency deadlock found in the D.C. Circuit Court of Appeals. When deadlock occurs, the D.C. Circuit breaks the tie by giving heightened Chevron deference to the decision of a bloc of commissioners to dismiss the complaint. This response to deadlock reduces incentives for bipartisan agreement because both blocs of commissioners can veto the actions of the other. This might be a good thing depending on how one conceives the role of these agencies. A cynic might suggest that the agencies’ design features of an equal number of commissioners from each party and a majority vote rule to accept a complaint were intended to create just this sort of deadlock in order to narrow the scope of agency action. Reinforcing vetoes of agency action with Chevron deference is therefore the right response. But a more optimistic account of the agency design would suggest that the bipartisan design and majority vote rule was intended to ensure a deliberative process of decision-making guided by expertise rather than partisanship.

If that more optimistic account of agency design is the right one, then it would be better for the court to apply a doctrinal approach that both incentivizes bipartisanship and provides opportunities for judicial reliance on agency expertise. Nou’s doctrinal solution represents such an approach, and thus implicitly favors a more optimistic account of agency design. Nou’s solution asks the court to apply an alternative Skidmore deference standard and “pierce the veil” of the administrative agency. When agencies deadlock, courts in their assessment of the meaning of the statute should not give heightened Chevron deference to the interpretation of one bloc of commissioners. Instead, Nou argues that the less deferential, more probing Skidmore deference standard should be applied to the judgments of agency staffers that work below the commissioners. Under the Skidmore deference standard, courts look to the “‘thoroughness’ of the agency actor’s consideration, the reasoning’s ‘validity’ and ‘consistency,’ and, more generally, any factors which give an interpretation power to persuade, if lacking power to control.” While some view Skidmore deference as a tool courts use when they want to independently decide the meaning of statutes, Nou imagines the standard as a means to break through deadlock and provide courts with expert guidance in the interpretation of statutes.

Nou would pierce the agency veil when the commissioners deadlock, allowing the court to look to and rely on the expert judgment of agency staffers within the commission. The persuasiveness of the expert judgments of agency staffers would depend on factors related to the political insulation of the decision maker. Such indicia of political insulation would include “tenure and salary protection, methods of appointment, and the degree of professionalization.” The stronger the indicia of political insulation of the agency actor, the more the court should be willing to defer to that election official’s expert judgment, as found in sub-regulatory informal guidance documents, opinion letters, or advisory committee recommendations.

Granting deference to these agency staffers will not only provide courts with reasoned expert guidance in their interpretation of statutes, but it could also foster cooperation among the commissioners. Fearing that deadlock will result in their judgments being bypassed by the court, the commissioners would have greater motivation to overcome their differences and reach agreement. This might lead to the conditions that allow for a more deliberative agency decision-making process in which the commissioners are able to put aside partisanship and decide on the basis of the available information what interpretation best advances the goals of the statute. Ultimately, we might see a shift toward more bipartisan agencies as a design to ensure agency action driven by expertise rather than partisanship.

Nou’s article is excellent in multiple aspects, but what ultimately makes it stand out is Nou’s extremely sophisticated and thoughtful marrying of election and administrative law. She provides a fascinating new lens through which to understand both areas of law as she paves the path toward the development of “more robust theories of federal election administration.” And perhaps most importantly, she provides a solution that aside from its innovation is one that we can imagine courts putting in place. If they did, we might finally see what many consider to be dysfunctional bipartisan agencies begin to function again.

 
 

Citizenship for the Worthy Children

Immigrant children are the subjects of varying narratives. To some, immigrant children fleeing Central America are invaders, while others view these children as innocent bystanders who are reaching out to the United States for protection from unimaginable violence. The narrative matters and it influences public perception. In Defining American: The DREAM Act, Immigration Reform and Citizenship, Elizabeth Keyes takes a close look at the narratives pursued in support of the DREAM Act and identifies danger posed by a narrative that promotes legal status and eventual citizenship for worthy and blameless immigrants. Keyes takes a narrative that seems unobjectionable and uncovers a major negative consequence.  Creating the worthy category necessarily creates a category of individuals undeserving under the law.

The Development, Relief, and Education for Minors Act, or DREAM Act, has been on the congressional agenda for almost 15 years, but has yet to make its way to the President for signature. The DREAM Act would put certain individuals who currently lack legal immigration status on a path to legal status, with the potential of eventual US citizenship. The criteria generally include entrance to the United States before the age of 16, achievement of certain educational milestones or military service, continuous residence in the United States, and possession of “good moral character.” In the face of legislative defeat of the DREAM Act, the Obama administration used similar criteria to implement the Deferred Action for Childhood Arrivals (DACA) program, which does not provide legal immigration status but does provide work authorization and a promise that the US government will not pursue deportation for two years.

Keyes focuses her attention on a narrative used to promote the DREAM Act and its policies of inclusion and formal recognition of attachment to the United States. Keyes identifies a “strategy of citizenship based on worthiness,” and then examines the hidden costs of that strategy. Keyes argues that promoting the DREAM Act as benefitting blameless immigrant youth with stories that connect with the traditional American dream narrows the category of those who generally are deemed worthy of citizenship.

By examining the efforts of those supporting the DREAM Act, Keyes identifies an overarching narrative that connects the story of DREAM Act eligible youth to the quintessential story of the American dream. Keyes explains that the “typical DREAMer narrative is one of success against great odds.” Immigrant youth, through no fault of their own, were brought to the United States without permission. Despite these beginnings, the DREAM Act would recognize those who have overcome the odds and achieved a high school diploma or more. These immigrants played no role in creating the fact of their illegal status—they are blameless—and their commitment to the American values of success and hard work establishes their worthiness as well. Keyes also notes that this narrative emphasizes the patriotism of the youth, either through qualifying military service or more generally through attachment to the United States. Those arguing in favor of the DREAM Act focus on how these immigrant youth already feel American and that their lack of citizenship is a formality. The idea is that these individuals are already citizens in their hearts, if not in the formal records of the US government. The narrative also promotes virtue by excluding all of those with criminal backgrounds except for the most minor offenses.

While Keyes recognizes that this narrative is not disingenuous and that it serves the noble purpose of pushing for legal status for a deserving and racially diverse group of foreign nationals, Keyes opens our eyes to the danger of pursuing a narrative that divides immigrants into categories of worthy and not worthy. In Keyes’ words: “The worthiness narrative that makes the DREAM movement compelling raises a challenging question: If worthiness is the way that these immigrants of color are able to claim citizenship—if the politics demand that high burden—does that open the door to denying citizenship to those deemed unworthy?”

This is, indeed, a challenging question, and Keyes guides us throughit. Keyes points out that the DREAM Act narrative of blameless children inherently creates a category of parents who are to blame, and generally sets a high bar for sorting immigrants worthy of gaining legal status from those who are unworthy. This has consequences for the debate over immigration reform generally, which would potentially provide a path to legal status for a wider group of individuals, including those who are arguably “to blame” for their current illegal status. Also, Keyes explains that the narratives of worthiness, virtue and patriotism make it possible to argue that those who have not achieved educational objectives or whose connections to the United States are not as lengthy are too different from the deserving group, the DREAM Act kids, to merit their own path to legal status. Keyes is not optimistic that the DREAM Act narrative will have positive trickle down effects for other immigrant groups. She views any coattails as very short.

Keyes presents us with a conundrum worthy of further inquiry. The dangers Keyes identifies illuminate the difficulties of line drawing once immigration advocates accept the broad proposition that some are more or less worthy of formal status within American society. As Keyes identifies, this phenomenon affects more than just the debate over who should be eligible to earn legal status. It also implicates birthright citizenship, as proponents of eliminating birthright citizenship have seized upon a narrative that those who benefit from US citizenship at birth simply because of geographic location in the United States at birth are not as deserving as those who earned US citizenship through perceived greater connections to the United States.

Keyes’ article leaves unanswered the question of where Keyes would draw the line between worthy and unworthy, or whether she would not draw a line at all. Keyes leaves us to wonder what alternative narratives DREAM Act proponents should pursue. Nevertheless, Keyes’ article opens our eyes to the downsides of the DREAM Act narrative and puts us in a position to examine questions that naturally follow her analysis. While political effectiveness may demand narratives that make immigration reform more palatable for some, Keyes reminds us that powerful narratives may have powerful unintended consequences.

 
 

Green Go! – The Military’s Sustainability Mission

­­Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879 (2014).

“Green Go!” The U.S. battle cry in the Mexican-American War that, according to some etymologists, earned Americans their nickname as “gringos” offers a fitting description of the Department of Defense’s growing interest in sustainable energy generation and use. In The Military-Environmental Complex, Sarah E. Light takes stock of the military’s complicated, often conflicted relationship with environmental objectives and explores the drivers behind the armed forces’ recent promotion of sustainable energy. Building on the military-industrial complex’s history of fostering technology innovation while also enabling abusive rent-seeking, Light offers recommendations to ensure that the emerging military-environmental complex strikes a socially beneficial balance between mission objectives and broader environmental goals.

From an environmentalist perspective, the military’s many statutory and regulatory exemptions from environmental laws that conflict with its national security mission raise concerns that military and sustainability objectives are inherently at odds with one another. But Light makes a convincing case that both types of objectives may, in fact, be more aligned than is commonly recognized.

As the nation’s single largest consumer of energy, the Department of Defense has a natural interest in enhancing the efficiency of its energy use. The case for more efficient and, hence, more sustainable energy technologies and practices is even more compelling for forward operating bases whose fuel costs are orders of magnitude higher than at our local gas station, not to mention the risks to soldiers who must escort fuel convoys through the theater of war. In Light’s words, “[e]nergy costs – both economic and political – are high, and … the DoD’s costs can be measured not in dollars, but in lives.” Accordingly, the armed forces characterize climate change as a “threat multiplier” and energy efficiency as a “force multiplier.” Energy efficiency and on-site renewable energy generation, among others, have the potential to unleash the military from the “tether of fuel.”

Just in case such intrinsic motivation may prove insufficient, a suite of congressional and presidential mandates both require and enable the military to bolster its sustainability efforts. Of particular interest to Light’s analysis are military-specific statutory authorities that allow the Department of Defense to serve as financier, testbed, and customer of innovative energy technologies. The article notes the Pentagon’s long-term contracting authority for energy procurement for up to 30-year terms, enhanced-use leases with in-kind remuneration such as power from a privately owned and operated solar facility on military land, and energy-savings performance contracts.

Viewed through the lens of technology innovation, the military’s recent interest in sustainable energy builds on the military-industrial complex’s track record as a catalyst for novel technologies that have since become fixtures of civilian life, including GPS navigation, transistors, semiconductors, and the internet. Once more, Light tells us, the Department of Defense is stepping in to provide critical funding and technological validation, and to create markets bridging the notorious valley of death between successful demonstration and first commercialization of new technology, this time for the benefit of solar panels, battery storage, and other emerging energy technologies. These striking parallels raise the question of what exactly it is that distinguishes Light’s military-environmental complex from the traditional military-industrial complex. Is it the (ancillary) environmental benefits that energy-optimizing technologies deliver in addition to enhancing the military’s mission objectives? And what is the relationship between the two complexes?

If there’s a critique of Light’s insightful piece it is that she remains somewhat vague on this pivotal point. Her closing recommendations suggest a vision for the military-environmental complex that battles as much against the undue influence and pork barrel politics marring the military-industrial complex as it combats climate change and other environmental problems. In the process, the article lays out the framework for a more equitable, more efficient, and more environmentally oriented version of the traditional military-industrial complex. One can see why Light chose to hone in on the environmental or, rather, energy aspects of the military complex. A broader framing, however, could help ensure that her thoughtful recommendations regarding the political process, innovative procurement authorities, and agency coordination, among others, will be considered beyond the environmental aspects of the military-industrial complex. Light’s proposed research agenda to further investigate the impact of military R&D funding and procurement on the development and diffusion of emerging clean energy technologies gives cause for hope that her follow-up work will more closely engage with and seek to answer these critical questions. I, for one, look forward to learning what she finds.

 
 

Those Are Pearls That Were His Eyes

Full fathom five thy father lies;
                Of his bones are coral made;
Those are pearls that were his eyes:
                Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.
Sea-nymphs hourly ring his knell
                                    Ding-dong
Hark! now I hear them – Ding-dong, bell.
–William Shakespeare, The Tempest

During the War of 1812, Philadelphia’s Academy of Fine Arts petitioned a Nova Scotia admiralty court to release works of art bound for it from Italy aboard an American merchant ship captured by the British and brought to Halifax. The court granted the petition distinguishing, for the first time in a published judicial opinion, cultural property from other chattel, stating that works of art are “entitled to favour and protection.”1 By creating an exception for paintings and prints, the court gave cultural property a special legal status, the contours and extent of which remain elastic. Two centuries after the Nova Scotia court christened the field of cultural property law, Valentina Vadi has written an insightful article seeking to determine whether a norm of customary international law is developing to distinguish and provide special legal treatment for a particular kind of cultural property: sunken warships.

Sunken ships are an especially complicated form of cultural property. A ship’s wreckage and cargo are often historically and aesthetically important and immensely valuable monetarily; their archaeological context preserves unique and irreplaceable information; their human remains implicate practices and traditions relating to treatment of the dead; and some pose environmental hazards to flora and fauna (both of which are deemed cultural property under a 1970 UNESCO cultural property convention). Because new technologies are facilitating the discovery, identification, and recovery of shipwrecks, it is reasonably foreseeable that disputes over them will continue. Thus, the growing scholarship on shipwrecks is timely, and Valentina Vadi’s inquiry, in particular, responds to an important question.

Claims involving sunken ships fall into an especially complex web of legal issues, and this web is nowhere more complex than in cases involving sunken military vessels. One would be hard pressed to identify other disputes that present an equivalently complicated set of laws. These cases bring into play ancient legal doctrines of salvage and finds; international conventions, treaties, and agreements; federal and state law; and customary international law. Complicating matters further, the range of stakeholders in these cases stretches far beyond the apparent ones – the flag state, the country where the wreck is located, and the modern-day discoverer – to include archaeologists, historians, collectors, scientists, amateur divers, environmentalists, descendants of the dead, journalists, and insurance underwriters, for starters.

The legal and ethical issues presented in shipwreck cases depend, in part, on the type of ship involved. Wrecks may be of passenger vessels (for example, the Titanic –sunk 1912, rediscovered 1985), merchant ships (the Kyrenia shipwreck – sunk 4th century BCE, rediscovered 1967), or, the focus of Vadi’s article, military ships (the Nuestra Señora de Atocha – sunk 1622, rediscovered 1985). That said, however, even classifying a wreck as a sunken military vessel takes a court into murky waters with some arguing that a warship loses that characteristic when it is no longer under military command and no longer functioning as a military vessel. Others argue that a military vessel retains its distinct character even on the ocean floor. Other fundamental issues are also unsettled. For example, what constitutes the wreck: the ship alone or the ship and its cargo? When human remains are discovered does the site require special treatment as a burial ground? Vadi addresses these concerns in describing two fundamental questions raised in recent cases.

The first is the determination of abandonment. Common law principles of salvage apply only to ships that have not been abandoned: the ship’s owner has the prerogative to refuse salvage. An abandoned ship, however, is subject to the law of finds, not to the law of salvage. By promising a financial award to the salvor, salvage law creates an incentive to risk life and property to save life and property. Title to salvaged property does not transfer to the salvor, however, until a court orders a salvage award. In the law of finds, as any six-year old knows, finders-keepers: those who recover an abandoned ship and cargo obtain good title to the recovered property. Thus, whether there is, or should be, a presumption of abandonment, favoring salvors, or a presumption of non-abandonment favoring the ship’s flag state remains unsettled. Second, when a sunken warship is discovered in the territorial waters of another nation tension develops with flag nations typically asserting continuing dominion and control of the wreck, a position in conflict with coastal nation sovereignty.

In determining whether there is an emerging norm of customary international law applicable to sunken warships Vadi observes that existing multilateral treaties provide only modest guidance. The extent to which provisions for military ships in the United Nations Convention on the Law of the Seas extends to sunken warships is not clear; moreover UNCLOS addresses cultural heritage issues only generally. And while UNESCO’s 2001 Convention on the Protection of the Underwater Cultural Heritage does address sunken military vessels, very few major maritime countries are states parties. Thus, Vadi turns primarily to case law and scholarship through the lens of four “paradigms:” sovereign immunity, property rights, cultural heritage, and humanitarian concerns. Vadi details the law and significance of each of these issues and, perhaps more importantly, describes how they overlap, reinforce one another, and conflict. While noting that an active debate remains as to whether a customary international norm exists granting sunken warships special protection, she concludes that “opinio juris and state practice are gradually coalescing” in that direction.

For those who study cultural property law, Vadi’s article provides a good reminder of the complexity of the issues presented in cases involving (often long-forgotten) sunken military vessels. For those in other fields, Vadi opens a door to understanding the range of factual, legal, and procedural matters these wrecks present to litigants and courts. For all readers, especially in her discussion of the cultural heritage paradigm, Vadi indicates why in cultural heritage disputes ethical considerations are often as pressing as legal ones.



  1. The Marquis de Somerueles, Stew. Adm. 482 (1813). []
 
 

Is There Any Disincentive to Deceiving an International Court or Tribunal?

W. Michael Reisman and Christina Parajon Skinner, Fradulent Evidence Before Public International Tribunals: The Dirty Stories of International Law (Cambridge University Press 2014).

Although its publication may come a bit late for our summer reading, Professor Michael Reisman’s Herch Lauterpacht Memorial Lectures have finally (with the co-authorship of Christina Skinner) been released by CUP in the form of a long-awaited 222-page monograph, including a detailed and valuable index. Occasionally the passage of a decade (in this case somewhat more) between the spoken word and its reformulations in print leads to an attenuation of the bluntness of the message. Innocents whose sensibilities with respect to the realities of international adjudication may have been assaulted in the course of those three wintry evenings in Cambridge can now verify that the carryings-on reviewed by the authors are still captured with uncompromising directness, as the subtitle suggests. Given the essentially consensual nature of all international adjudication, this study should be given concerned attention in relation not only to permanent courts but also to arbitrators whose mandate is limited to a single case.

On one view, we really shouldn’t be the least shocked. After all, States repeatedly find it legitimate to put their own soldiers in harm’s way, and presumably think the slaughter of young people from neighboring countries is justified, in order to secure territorial ambitions or to maintain what they think of as their “credibility”. What then is a bit of forged evidence (or even a case entirely based on it) among urbane friends, when used for the same purpose but on the legal battlefield?

Public international tribunals are notoriously poor fact-finders, and the larger their membership the greater their fecklessness. Naturally this deficit reveals itself when the factual inquiry involves allegations of forged evidence. And some of the causes of paralysis in such instances are common to the more general pattern of inadequacy: the absence of effective powers of compulsion, the stubborn disinclination to hear witnesses or even to engage neutral experts versed in matters of which the putative fact-finders are at best amateurs, and indeed the frequent selection of judges and arbitrators whose career paths as lawyers never required them to venture outside the realms of high abstraction. But something far more sinister is at work here, namely the implicit acceptance that la raison d’Etat sanctifies everything, and the implicit sub rosa code that the international community should turn a blind eye to “practices that would be condemned in developed national legal systems but have hitherto been ignored by international tribunals and international scholarship”.1 The legal profession’s reaction has been “baffling”, the authors write, and identify the stakes as follows:

… cases of fraudulent evidence which have been practiced on public international courts and tribunals … mar the noble vision and ennobling practice of sovereign States voluntarily submitting their disputes to courts and tribunals for peaceful resolution in accordance with international law; in raising doubts about the accuracy of international decision, they diminish the future willingness of States to resort to tribunals. Moreover, corruption of the truth often extends beyond the hearing room of a single case: in an interdependent world, lies which manage to distort judicial or arbitral decision in one case can contaminate many others. Judge Schwebel, to whom this book is respectfully dedicated, put it concisely: “they undermine the essence of the judicial function.” 2

The authors examine in detail a number of incidents before international fora, some of them very familiar cases which their research reveals as having had somber undersides. The culpable States are a motley crew, including some usually thought of as enjoying a high degree of institutional maturity. Their brazenness and cynicism in many of these instances are startling, but less so than the studied indifference of many judges, arbitrators, diplomats, and (for all their verbosity in pronouncing on the logic and doctrinal orthodoxy of judgments and awards) commentators.

One understands the impulse behind invocations of la raison d’Etat: a public objective the pursuit of which is said to be so indispensable as to justify unsavory means. The terrible problem is that expediency and hypocrisy are habit-forming, and before you know it the indispensable public end becomes anything which suits the purposes of officials who adorn themselves with the raiments of the State. Needless to say, they undermine the stance of legions of highly principled public servants who understand that must is lost when such behavior is condoned or ignored: trust in the institutions charged with ensuring the rule of law in the international community.

Reisman and Skinner are telling us that we have a serious problem, not how to solve it. They would clearly have preferred an international system in which adjudicators do not sidestep the inconvenient discovery of fraudulent behavior by disputants by allowing them to plead their cases on alternative grounds which do not rely on the discredited evidence. This practice means that there is little disincentive for unscrupulous attempts to deceive the decision-maker, but such has been the (low) road taken and the authors do not suggest that the dynamics of the process leave grounds to hope for a change. They note proposals for regulating the conduct of international advocates, but for various reasons do not find them realistic. The dynamics of the international processes and the divided loyalties they create (often resolved against the notion of a duty of candor to the tribunal) are described in ways of which this brief note cannot give a substantive account, but only affirm that this is previously unexplored and disturbing territory.

Public international adjudication it but one form of international dispute resolution in which the decision-makers’ authority is ultimately and necessarily based on the consent of the disputants. One must therefore wonder what aspects of these “dirty stories” tend to replicate themselves in the much larger field of international arbitrations involving private parties, and whether this question posed by the authors could be posed replacing the word “states” with the generic “parties”:

Are we entitled to conclude that from the perspective of international tribunals, they have no ancillary duty to police the honesty of states and their representatives but rather to rely on the cleansing dynamic of the adversarial process, to work through the evidence, as best they can, and to reach the right conclusion?3

Some will answer as Judge Stephen Schwebel did in Nicaragua v United States:

Deliberate misrepresentations by the representatives of a government party to a case before this Court cannot be accepted because they undermine the essence of the judicial function. This is particularly true where, as here, such misrepresentations are of facts that arguably are essential, and incontestably are material, to the Court’s judgment. 4

All of us are left to ponder how the international community could find effective ways to reject what “cannot be accepted”, if that phrase is to covey anything more than a noble sentiment.



  1. The quoted words appear on the back cover, ostensibly anonymous or attributable to the publisher; but does anyone pretend they weren’t written by the authors? []
  2. P. x. []
  3. P. 199 []
  4. Nicaragua v. United States, 1986 I.C.J. 14, 27 (June 27) (dissenting opinion of Judge Schwebel). []
 
 

A Legal Beagle’s Voyage

Nicholas A. Robinson, Evolved Norms: A Canon for the Anthropocene, in Rule of Law for Nature 46-71 (Christina Voigt ed. 2014).

Environmental law strives to improve the relation of Homo sapiens to the ecosystems that support human life and all other life on earth. Ever since Darwin we have known that just as each species affects its environment, the environment pushes back, exerting selective pressure in favor of adaptive variations. Evolution is the long-run product of ecology. At its best, environmental law puts this understanding to work in the service of people and nature. And yet, Professor Nicholas Robinson observes, the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law.

In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.

An impressive range of positive law at every level supports Robinson’s thesis that these principles undergird the architecture of much existing environmental law. Evolved Norms finds them in New York State statutes, in constitutions of nations around the world, and in international agreements, as well as in high court decisions of many countries. They emerge in diverse settings, not all of which have been categorized, traditionally, as environmental law. The cooperation principle generates agreements for mutual aid in times of disaster and for collective management of common resources. The biophilia principle leads to legal protection of natural habitats and of biodiversity. The resilience principle promotes laws facilitating insurance against disaster.

A moment’s consideration that human beings are organisms, as subject to natural selection as any other species, suffices for the conclusion that these evolved norms must have some biological basis. Yet Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.

Robinson acknowledges this tension. He allows that “[t]he transcendence of ‘ecological instincts’ will occur incrementally and haphazardly” because the evolved norms favoring stewardship are often in tension with “maladapted ‘economic instincts.’”

The unpleasant question, though, is whether humans’ “economic instincts” really are “maladapted” in a Darwinian sense. The genetic traits that made Homo sapiens capable of such profound ecosystem modification, after all, are the same traits that conferred on our species such astounding evolutionary fitness. These phenomena cannot be separated, from the harnessing of fire to the use of tools to the domestication of other species and on down through human history to today’s extraction of previously inaccessible fossil fuels. Yes, there are examples of human settlements or societies that have failed because of long-term consequences of behaviors that seemed adaptive in the short term. But globally, our species has been – to invoke one of Robinson’s preferred evolved norms – resilient enough to succeed in spite of the apparent havoc it has wrought on other parts of the ecosystem. “Economic instincts,” then, seem to be a manifestation of Darwinian “fitness.”

On this question Robinson would have done better to distinguish more sharply between genetic evolution and cultural evolution. Robinson quotes Aldo Leopold’s observation that human instincts foster ecological competition while human ethics foster cooperation, yet Leopold understood that ethics directly restrain fitness-maximizing behavior: “An ethic, ecologically, is a limitation on freedom of action in the struggle for existence,” he wrote.1  Biological evolution has provided humans with the capacity to develop and apply such ethics: to conclude, for example, that it is possible to attain, as Robinson puts it, “sufficiency” in resource consumption. Cultural evolution, a product of genetics and environment, leads us, at least at some times and in some ways, to put that capacity into practice. This is remarkable in the biotic world. After all, the lynx preserves the hare population not because of ethical concern or self-interested foresight, but because when hares become scarce the lynx population crashes before the hares are all gone.

Sociobiology too has something to say about this, of course. Since the field’s founding, one of its central occupations has been to explain how natural selection could favor the spread of genes that produce altruism, cooperation, and other behaviors that seem contrary to maximizing individual fitness. Often the answer lies in genetic relationship: natural selection can favor behaviors that benefit siblings, offspring or other relatives even at some personal cost. As Robinson notes, evolved cooperation on this basis can extend too narrowly, if collective action is needed in response to problems of intertribal, international, or global scope.

In other situations, when the pursuit of individual self-interest in nature’s economy produces dysfunctional results (as it sometimes does in human economies), natural selection provides a needed if painful corrective. When humans introduced the myxomavirus to Australia in an effort to control the rabbits humans had previously introduced to the continent, the most virulent strain quickly was replaced by less virulent strains. The virus is spread by mosquitos, and mosquitos will not bite a dead rabbit. The rapid reproductive success of virulent viruses was too quickly fatal to their host organism and thus proved counterproductive to the virulent strain’s long-term survival. Mutation and natural selection promptly evolved viruses that killed less efficiently but spread more effectively. The rabbits in turn evolved resistance to the virus.2

The long-term success of myxoma virus in Australia depended on a balancing act – a type of stewardship of the virus’s host. Humanity’s long-term success depends on a balancing act that includes proper stewardship of our species’ host, Earth. Robinson’s insight that environmental law is based on, and should amplify, genetic traits that produce norms favoring such stewardship is an important contribution to environmental law scholarship. Robinson calls for “[s]tudies in law and sociobiology [to] begin in their own right.” It is a call environmental law scholars should heed.

Darwin understood that an organism’s inherited traits could be shaped by selection. After Watson and Crick elucidated the structure of DNA, evolutionary biology began a “grand synthesis” joining observational and theoretical population dynamics to genetics. Today, the power to decode whole genomes, coupled with increasing understanding of the environmental and epigenetic influences on gene expression, is rewriting large swaths of taxonomy and evolutionary theory once again.

It should be but a short, although difficult, leap to incorporate this biological learning into the study of law. Already neurobiology is undermining some premises of criminal law and the law of evidence, psychology is disrupting the claims of rational-choice legal theories, genomics is influencing the law of toxic torts. It makes perfect sense for evolutionary insight to inform the law of ecological stewardship. Nicholas Robinson’s Evolved Norms may not be to environmental law what The Origin of Species is to evolutionary biology. But Robinson deserves praise for having had the courage to step aboard the legal H.M.S. Beagle and begin the exploration.



  1. Aldo Leopold, A Sand County Almanac 202 (1949). []
  2. Peter J. Kerr, et al., Evolutionary History and Attenuation of Myxoma Virus on Two Continents, 8:10 PLOS Pathogens 1 (Oct. 2012). []
 
 

The Substantive Criteria Underlying Birthright Citizenship

D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013).

The Fourteenth Amendment of the United States Constitution grants birthright citizenship to all individuals born within the territory of the United States, with an exception for the children of diplomats. Consequently, the children of unauthorized migrants born in the United States are United States citizens. A number of individuals, including members of Congress, contend that birthright citizenship serves as an incentive for unauthorized migration. As recently as January 3, 2013, the House of Representatives considered a bill that would limit constitutional birthright citizenship to the children of U.S. citizens, lawful permanent residents, and noncitizens serving in the armed forces. Carolina Núñez’s article makes an important contribution to this debate, and to the academic literature on citizenship and membership more broadly, because it offers substantive criteria for determining who should have birthright citizenship in the United States and because it analyzes a variety of proxies for measuring these substantive criteria.

Through an examination of post-American-Revolution cases and the congressional debates for the Fourteenth Amendment, Núñez identifies three substantive factors that have been critical in making membership decisions: mutuality of obligation, community ties, and community preservation. Núñez introduces three models of membership utilized in U.S. law (the territorial model, the status-based model, and the post-territorial model) and assesses each model’s ability to effectively measure the substantive criteria. She concludes that the use of “inaccurate proxies are unavoidable” when assigning birthright citizenship, but that the territorial model offers the most accurate proxy. (P. 857.)

After the Revolution, courts had to determine “[w]hat made a former British subject a citizen” as well as when British subjects became U.S. citizens. Rather than using rigid rules to make these determinations, the courts utilized a totality-of-the-circumstances approach in which loyalty to the United States and community ties were important factors. Allegiance gave rise to a state obligation to protect the loyal individual. Integration into the community was evaluated based on where individuals were raised and where they decided to live.

Núñez argues that the congressional debates regarding the Fourteenth Amendment reinforced the importance of these substantive factors in making birthright citizenship decisions. During the debates Congress discussed whether the children of Gypsies, Chinese immigrants, and Native Americans would obtain territorial birthright citizenship. While the arguments against extending birthright citizenship to these groups had racist overtones, Núñez adeptly identifies the specific conduct that was used as the basis for excluding these groups. Those against birthright citizenship cited concerns about loyalty, willingness to submit to U.S. sovereignty, and limited ties to American communities. The Fourteenth Amendment did not exclude the children of Gypsies and Chinese immigrants. Núñez attributes this fact to Congress concluding that these children would be loyal, that they and their families played an important economic role in American communities, and that exclusion would create a subclass within American society whereas inclusion “would create a just, egalitarian society.” (P. 870.) A different outcome, however, was reached for Native Americans—primarily because Native Americans were considered members of separate and distinct nations and were viewed as not having any allegiance or obligations to the United States.

Based on her conclusion that mutuality of obligation, community ties, and community preservation are the substantive criteria upon which membership decisions should be made, Núñez evaluates the ability of the territorial and status models to accurately identify desirable members. The territorial model uses the border to assign membership. Those within the border are members and those outside of the border are not. This is contrasted with the status-based model in which rights are assigned based on an individual’s status. Finally, the post-territorial model seeks to measure the desired substantive criteria directly rather than using proxies.

Núñez concludes that implementing the post-territorial model and conducting an individualized assessment of every person born in the United States “would be impractical.” (P. 875.) Thus, proxies are necessary. Núñez argues that the territorial model better assesses mutuality of obligation, community ties, and community preservation than the status-based model. Because legal obligations in the United States are based on presence rather than status, Núñez easily concludes that mutuality of obligation is better measured by territorial presence than by parental status. Birth in the United States is also more predictive of the development of community ties because it generally gives rise to long-term residence and connection to community institutions. Finally, Núñez contends that denying the children of unauthorized migrants birthright citizenship would “distribute membership rights on different terms to individuals who are effectively identical in all substantive respects,” which is unjust. (P. 880.)

Núñez’s analysis of the post-Revolutionary citizenship cases convincingly offers a set of substantive criteria for membership in the American polity. Her discussion of the initial refusal of birthright citizenship to Native Americans suggests that cultural assimilation has also been a substantive requirement for birthright citizenship. Native Americans were denied constitutional birthright citizenship not only because they were deemed members of independent sovereign nations but also because they were viewed as “uncivilized” and thus lacking community ties.

Núñez’s article provides a very useful starting point for thinking about the substantive criteria for birthright citizenship in the United States. Her analysis also offers important insights about American identity and the ways in which certain community ties may be privileged over others when deciding who is sufficiently connected to be deemed an American at birth.

 
 

Civilizing Civil Detention

César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.

When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.

Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted.  The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system.

That’s okay, said the Supreme Court in Demore v. Kim, because detention is an avenue to deportation, and as long as immigration detention is not used to punish, it is classified as civil and Due Process sets the procedural standard. The constitutional protections give way a bit, giving Congress some leeway to withhold individualized bond hearings. That raises two questions: Is immigration detention punishment? And if it is, can we inoculate immigration detention from illegitimacy with more robust criminal-type procedural protections?

The title of García’s elegantly written article might clue you in to his answer to the first question. The article takes an unexpected turn, however, when addressing the second. If immigration detention is civil, it argues, criminal procedural protections are not the solution.

I loved this piece because I love legal history, especially when it reveals new insights into the more peculiar structures of modern law, and because I love scholarship that delves deeply into one corner of law to ask questions about the whole room. Until I read this piece, I assumed that the profligation of immigration detention stemmed from the major expansion of deportation grounds in the 1990s. That’s consistent with the idea that detention is merely an airlock to deportation.

Immigration Detention as Punishment led me farther back in time to the beginning of the “war on drugs.” 1986 was the birth year of modern “immcarceration” (hat tip to Anil Kalhan for that evocative term), when Congress ordered the Defense Department to make detention facilities available to the Attorney General for “illegal alien felons and major narcotics traffickers,” and authorized police to request immigration “detainers” from federal immigration officials. Most importantly, Congress channeled funding to state and local governments, the Bureau of Prisons, and the immigration agency for detention connected with “illegal alien” involvement in drug trafficking and crimes of violence. Later, Congress specified that jails and prisons and other comparable facilities were appropriate, even desirable, for detaining noncitizens.

Locating the birth of modern immigration detention within the war on drugs allows García to connect the rise of detention with the contemporaneously swelling penal prison population. He shows how the mandatory minimum sentences and sentencing guidelines that came into vogue in criminal law in the ‘80s and ‘90s, limiting judicial discretion and expanding prosecutorial power, appeared in refracted form in immigration provisions that introduced mandatory detention provisions and constrained judicial power to avert deportation. Seen through this historical lens, immigration detention “became an integral part of the punitive consequences” of the war on drugs. García’s meticulous unfolding of the legislative history of immigration detention constructs a persuasive argument that Congress intended immigration detention to perform a punitive function.

Entangling immigration detention with criminal punishment would seem to support an argument for importing criminal procedural protections into immigration detention. García acknowledges that raising procedural barriers to immigration detention would make it slower and costlier for the government to impose detention. But he notes that the criminal justice system, with its panoply of constitutional procedural protections, neither won the war on drugs nor prevented the mass incarceration of drug-crime defendants.

It is this examination of the contradictions of immigration detention that leads García to call for “a wholesale reexamination of the efficacy of confinement as a tool of social control.” Here García makes an Escher-like move, shifting the readers’ perspective from criminal analogues to the formally civil status of detention and asking us to take it seriously. The article advocates creating the “truly civil detention system” that the Immigration and Customs Enforcement agency states that it aspires to.

Imagining a civil detention system may invoke for some the picture of unauthorized aliens sunbathing at leisure at taxpayer expense. Taking civil detention seriously, though, requires a rigorous evaluation of how to calibrate deprivations of liberty and individual circumstances with immigration policy goals. So as not to be a spoiler, I will leave you to the pleasure of that garden pathway with García as your guide.

 
 

Vanishing into the Ether: Link Rot and Disappearing Precedent

Every first-year law student is taught the importance of citing to the materials relied upon to make a legal argument. Opposing counsel and the judge should be able to retrieve the materials cited and determine whether the materials support the argument put forth. At first blush, citation to materials on the internet would seem to make retrieval easier. Lawyers no longer have to go to a library or dig through a database to find the cited materials. However, a fairly high number of these citations are being lost to link rot, that annoying instance when you click on a link and what you are looking for is no longer available.

Raizel Liebler and June Liebert conducted a study of internet links contained in Supreme Court of the United States (hereinafter “SCOTUS”) opinions from 1996–2010 and found that, shockingly, 29% of links in the opinions either led to nothing or did not lead to the information discussed in the opinion. With stare decisis as a foundational principle of American law, it is disturbing to consider how the underlying basis of court opinions may be disappearing at a rate much higher than anticipated. The consequences for lawyers and researchers seeking to understand the legal analysis contained in a court opinion are profound.

The authors begin, “Citations are the cornerstone upon which judicial opinions and law review articles stand.” (P. 275.) From there, Liebler and Liebert go on to discuss the increasing use of citations to links in SCOTUS opinions. The first citation to an internet link appeared in Justice Souter’s 1996 concurring opinion in Denver Area Educ. Telecomm. Consortium, Inc. v. FCC (518 U.S. 727, 777 n.4). The next use was not until a 1998 dissent by Justice Ginsburg in Muscarello v. United States (524 U.S. 125, 143 n.6). Since that time, citations to links has increased tremendously. Liebler and Liebert found 430 website citations in 144 SCOTUS opinions from the 1995–96 term to the 2009–10 term. Of these 430 URLs, 29% of them had suffered link rot. As the authors state, “Considering the preeminence of the United States Supreme Court, a link rot rate of almost one-third . . . is quite shocking.” (P. 298.)

The problem of link rot is not simply that a link may no longer work but can be much more complicated. For instance, a citation to an SSRN paper may later be changed as the author advances in the writing and publication process. The author of a blog post relied upon in a court opinion may later change her opinion and edit the blog post to reflect her current thinking. A lawyer or researcher examining the basis for a justice’s analysis may find material that is entirely different from what the justice cited. Statistics found on the internet, even on a government website, may be removed and replaced with newer statistics. In fact, the authors found no difference in the probability of link rot between government and non-government websites. Similarly, the probability of link rot did not depend on the format of the link (i.e., pdf, htm, html). The authors conclude that it is not possible to predict which links will rot.

There is, apparently, hope that this unfortunate state of affairs may find a solution. The authors highlight 2009 guidelines released by the Judicial Conference of the United States titled Citing To, Capturing, and Maintaining Internet Resources in Judicial Opinions/Using Hyperlinks in Judicial Opinions. The Conference advised judges to consider archiving a copy of internet materials relied upon in an opinion. The SCOTUS Clerk of Court does retain a print copy of cited materials in its case file but those materials are only available by visiting the Clerk’s office or contacting the National Archives and Records Administration (NARA) after the files are archived. The Ninth Circuit Library is also archiving websites cited by creating PDF files. As the authors insightfully point out, however, this works well for text files but does not capture audio, video, or software files.

Liebler and Liebert’s article offers a shocking illumination of the problem facing citation to internet links in a system of law based on precedent. With no solid plan in place to accurately preserve and make accessible cited material we risk losing the ability to see and understand the authority relied on by the Court.

 
 

Small Things Matter in Environmental Law

• Dave Owen, Critical Habitat and the Challenge of Regulating Small Harms, 64 Fla. L. Rev. 141 (2012).
• David E. Adelman, Environmental Federalism: When Numbers Matter More than Size, U. Texas Working Paper Series (2013), available at SSRN.

Most people, when they think of environmental pollution, think of large, industrial factories pumping out noxious fumes into the air, putrid liquids into the water, and barrels of toxic wastes into the soil. For instance, almost every newspaper article, blog post, or television story about climate change has as an image of the smokestack of a major power plant or factory.

Most people’s perceptions are wrong. It has long been the case that much of the degradation of our natural environment is the result of the accumulation of thousands, millions, even billions of individual actions by people across the United States and around the world. Climate change, for example, is the result of the decision of each of us to drive a car powered by fossil fuels, eat meat, fly in planes, heat our house with fossil fuels, and other similar, seemingly trivial actions. Moreover, these misconceptions are not limited to the general public or general journalists—environmental law scholars and policy makers have fallen into this trap as well. Even when scholars and policy makers have recognized the importance of small harms for environmental law and policy, there is often little information about how important they are, or what, exactly the implications are for our current legal and regulatory systems.

Two recent articles—Dave Owen’s piece, Critical Habitat and the Challenge of Regulating Small Harms, and David E. Adelman’s article, Environmental Federalism: When Numbers Matter More than Size—are welcome efforts to address the gaps in our understanding of how small harms matter to environmental law and why they matter. Moreover, they both are outstanding examples of a recent trend in environmental law to jump on the empirical legal studies bandwagon—both collect and use substantial amounts of data in their analyses.

Owen’s piece looks at a controversial, but underappreciated, provision of the Endangered Species Act (ESA): critical habitat. The agencies in charge of implementing the ESA (the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)) are supposed to designate critical habitat for all species listed for protection under the Act. Historically, those agencies have resisted critical habitat designation, arguing that it adds minimal additional regulatory protection for listed species, but with substantial administrative and political costs. Owen first establishes that, properly understood, critical habitat should provide substantial additional regulatory protection for listed species on top of the other ESA provisions—and that those protections are most important for the accumulation of small harms to the habitat for listed species. Small harms to habitat include, for example, the paving over of lands within a watershed for residential and commercial development; each individual bit of development worsens the water quality of the streams within the watershed by a small, incremental amount. These small harms are not individually enough to trigger other provisions of the Act, but cumulatively might matter a lot for listed species. Another key example of this kind of harm is climate change.

Owen then undertakes some heroic empirical research. He compiled over 4,000 individual regulatory documents from FWS and NMFS to explore whether, in practice, critical habitat designation affects regulatory decision-making and whether the agencies are doing anything else about the accumulation of small harms to habitat for listed species. He finds that critical habitat designation appears to be making little difference for decision-making—even where the evidence is clear that in a particular situation a proposed development project will have small, but meaningful, impacts on the habitat of a listed species. He also—more surprisingly—finds evidence that the agencies are trying to use a range of other creative tools to address the problem of small habitat harms. Finally, he notes that small habitat harms are incredibly important, with the vast majority of the regulatory decisions involving individually small, potentially cumulatively important, harms to habitat for listed species.

Complementing Owen’s narrow but deep focus on a particular statutory provision, Adelman’s project is an effort to take a large-scale view at the problem of air pollution. Adelman marshals a range of data provided by the Environmental Protection Agency (EPA) and other sources to demonstrate that large, industrial sources contribute only a small fraction of the overall problem of air pollution in the United States, particularly in the large urban areas where air pollution problems are most severe. Adelman then shows how the current legal structure of the federal Clean Air Act purports to give states substantial leeway to reduce air pollution in a “cooperative federalism” framework, but in fact gives states little power overall. Adelman notes that much of the pollution in urban areas comes either from sources primarily under direct federal regulation (motor vehicles and electric power plants) or from the accumulation of many small sources that are extremely difficult to manage or regulate (e.g., wood-burning stoves, backyard barbeque grills, dry cleaners, and the choices by millions of individuals about whether and how to undertake their daily commutes).

On one level, Owen and Adelman reach very different conclusions from their surveys. Owen believes that the current ESA implementation process, while it has substantial problems and needs some reforms, is the correct general framework. Adelman, by contrast, calls for substantial revisions in the Clean Air Act.

But, on another level, their overall messages are very consistent. Both argue that to address the increasing importance of small, individual actions for environmental law, what is needed is a wide mix of regulatory tools (e.g., command-and-control or market-based mechanisms)—from all different scales of government (local, state, federal). For instance, Owen notes that the case-by-case implementation of the ESA by various FWS field offices allows for careful tailoring of regulatory choices to on-the-ground political and economic reality. Adelman argues that rigid divisions between federal, state, and local jurisdiction in environmental law will interfere with the messy process of changing the patterns of individual behavior that are so fundamental to environmental problems today.

I’m not sure I agree with all of the normative recommendations in both of these pieces. But in the end, the most important contribution of both is highlighting how important the accumulation of small harms is for the future of environmental law, and providing some insights about how we might go about addressing this challenge.