Yonathan A. Arbel, Contract Remedies in Action: Specific Performance
, 118 W. Va. L. Rev.
100 (2015), available at SSRN
Parties that have a right to the very thing promised in a contract may opt not to have it delivered by the breaching party through specific performance. Even when the promised item is unique, the plaintiff may choose not to enforce the remedy. Why? Is it too difficult to execute the remedy? Are motivations mixed? Do lawyers advise clients to pursue money damages over specific performance? Will the breaching party behave in good faith when complying with the order? Professor Yonathan Arbel, former managing editor of the New Private Law Blog, offers a fascinating qualitative study of this underexamined issue. He explores why a contractual party that has established a right to the remedy of specific performance might opt out of the preferred remedy. Despite having a proven right to this coveted remedy, he shows why plaintiffs may choose not to force the breaching party to perform as promised. This, he claims, is true notwithstanding the “notoriously” under-compensatory nature of expectancy damages in comparison to specific performance.
Remedies and substance are intertwined. Professor Ariel Porat, in a Remedies chapter in the forthcoming Handbook of Law and Economics, declares that “[a]nalyzing the substantive law without its remedial part is almost meaningless.” Understanding remedial options and goals is essential. Professor Arbel’s work thoughtfully analyzes contract law’s pinnacle remedy of specific performance and the goals it serves. He then critically examines contract’s law primary competing theories—economic and rights-based conceptions—in light of parties’ actual behavior regarding specific performance. His treatment describes what parties actually do when confronted with the option of specific performance in the real world. His qualitative approach explores their practices “‘from the inside,’ tracking the internal view of litigants and their lawyers.”
The heart of Professor Arbel’s article centers on his findings from interviews with lawyers and their clients who were engaged in specific performance litigation. For the qualitative analysis, he uses a comparable legal system, but one where specific performance is the default remedy: Israel. The interesting findings are inconsistent with the two main contract theories: A utilitarian may view specific performance as a bargaining chip to extract more money from the breaching party, while a rights-based advocate may view the remedy as the ultimate vindication of the value of promise-keeping. In part, Professor Arbel opines that the growing empirical data to prove these theories relies upon faulty assumptions. For example, the theorists omit plaintiff’s remedial choices, assume parities will negotiate execution of the order, and fail to appreciate real-world motivations and implementation challenges.
The interviews reveal the complexity that lies beneath. Though not all plaintiffs opt out of this powerful remedy, significant numbers do abstain at various stages: (i) prejudgment, (ii) post-judgment renegotiation, and (iii) ultimate execution. Pursuing a remedy via the court system takes time. Reaching the desired judicial remedy via litigation suspends the parties in an adversarial posture, which may linger post-trial when it is time to execute the special performance decree. Attaining the promised performance may entail further negotiations, and plaintiff’s preference may alter over time. Such orders require good faith in implementation, despite lack of standards or court supervisory means to ensure high quality compliance. In the face of bad faith or even simply delay, plaintiff must choose whether to spend energy and money to demand compliance. Most interviewees reported real challenges enforcing specific performance. Contempt may be ineffective if defendant lacks funds. Plaintiff may be left to leverage defendant’s reputation or rely on social norms—both valuable tools but not full proof in operation.
Professor Arbel also seeks to bridge the binary nature of the two theoretical dialogues. He suggests the economics-minded align assumptions with actual practice—for example, a decree does not equate to receipt of actual performance as promised. For the rights-based theorists, he recommends they consider the strategic and utilitarian motivations plaintiffs demonstrate in the process. Per Arbel’s findings, a plaintiff may choose specific performance prejudgment to signal the strength of the case, minimize costs and delays, and leverage renegotiation after judgment. Both would be well served to enhance their exploration with the possibilities that these real-world findings signify.
Importantly, Professor Arbel maintains that to best protect nonbreaching parties, both theoretical schools should give plaintiff the option between specific performance and expectation damages. Ethical rules must guide lawyers to avoid self-serving advice. But even assuming sage advice, Professor Arbel warns that judges shouldn’t trust plaintiffs to choose wisely, which may necessitate judges exercising broad discretion to craft the remedial award. This harkens back to equitable cleanup jurisdiction in the United States in which the judge would render complete justice, including damages in lieu, should specific performance become unavailable or impossible. What about other possible remedies beyond compensation if specific performance is unattainable: for certain breaches of contract, should plaintiffs also be able to disgorge defendant’s unjust gains? See here, here, and here. Both the United States and Israel permit a disgorgement gain-based remedy for breaches of contract when appropriate. That is a topic for another day, but more research along the lines Professor Arbel conducts would go far in servicing the very goals that the substantive law of contract aims to attain.
Overall, Professor Arbel seeks to contextualize contract theory, break the stalemate between instrumental and deontological stances, and stimulate the collection of more data with larger samples. His article successfully contextualizes the debate, but only time will tell on the other two aims. It is my hope that he and the scholarly community will succeed on all three goals. Fine-tuning data to context and linking theory to practice will sharpen the theoretical debate and aid plaintiffs in achieving optimal results in the face of breach.
May the third generation of specific performance discourse begin.
Cite as: Caprice Roberts, Studying Specific Performance
(May 25, 2017) (reviewing Yonathan A. Arbel, Contract Remedies in Action: Specific Performance
, 118 W. Va. L. Rev.
100 (2015), available at SSRN), http://lex.jotwell.com/studying-specific-performance/
Experiential learning is currently one of the buzz words of legal education. Recent changes to the ABA Standards and Rules of Procedure for Approval of Law Schools have focused greater attention on learning outcomes and assessment and increasing opportunities for learning and practicing skills that students will use as attorneys. In fact, ABA Standard 303(a)(3) requires a minimum of 6 credit hours of experiential course work.
Traditionally, experiential learning was widely thought to be the domain of law school clinics and externships, or field placements. However, the increased credit hour requirement for experiential learning has caused law schools to review their curriculum and determine whether sufficient experiential learning opportunities exist to meet the minimum requirement. Accordingly, there is a push to design new courses, or redesign existing courses, to meet a third type of experiential learning termed simulation courses, as described in ABA Standard 304. In order to qualify as a simulation course under the standard, a course should provide an experience “reasonably similar” to client representation although the student is not working with a real client.
Professor Alyson M. Drake’s article calls for the creation or retooling of stand-alone research classes that will meet the requirements to be designated as experiential classes. An increase in the number of research classes categorized as experiential will provide two benefits. First, and most importantly, it can serve to provide additional legal research instruction beyond the first year of law school. It will also support the mission of law schools to expand course offerings that meet the experiential standard.
Although classes in legal research have traditionally been sparse and under-valued in law schools, this approach does not match the necessity for proficiency in legal research needed as a practicing attorney, or the amount of an attorney’s time that is devoted to legal research. Professor Drake notes that newer attorneys spend approximately 35% of their time on legal research. More experienced attorneys spend approximately 18% of their time doing research. In contrast, Professor Drake notes that hiring attorneys often assess new attorney research skills as needing improvement. Providing more legal research instruction, in a format that closely mimics the work of a practicing attorney, will produce students who are better prepared to transition to practice.
Professor Drake’s article provides a very useful overview of the history of this shift in the ABA Standards and legal education in general. Similarly, the article also provides a breakdown of the Standards and how they can be interpreted in regards to experiential education and, in particular, simulation courses. This background and analysis of the standards is quite useful for those seeking to understand the context of the shift toward increased experiential learning as well as those seeking to create experiential learning opportunities in legal research courses.
Finally, Professor Drake discusses several current legal research teaching methods and how they might be retooled to satisfy the requirements of Standard 304. She breaks down the components of different pedagogical structures, highlighting which components are likely to already meet the requirements, which aspects might not, and recommending ways in which those components might be restructured to meet the standard.
Professor Drake begins with the “traditional legal research course,” described as “those where the lecture takes place during class time.” (P. 529.) Some classroom practice is usually included, but the balance between lecture and practicing skills can vary significantly. A traditional class of this sort may be the most challenging to convert to an experiential model. However, Professor Drake offers several changes to a traditional class that could support its meeting the ABA requirements for an experiential class. These include ensuring the balance between lecture and practice weighs most heavily toward practice, using assignments that closely approximate problems likely to occur in practice, and limiting class size so that the professor can provide “direct supervision.”
Professor Drake goes on to discuss key components of flipped, online, and specialized legal research courses and outlines several suggestions for how these courses can be retooled to meet the experiential requirements. Her article is a call to create experiential legal research courses, but it goes farther by providing a roadmap that can be used to design new classes or restructure existing classes. Legal research is a critical lawyering skill; however, it is also an area where hiring attorneys believe new attorney skills are lacking. This gap between the necessity of efficient and effective research and ability at law school graduation creates an opportunity for the growth of legal research courses in the curriculum.
Tun-Jen Chiang, The Information-Forcing Dilemma in Damages Law
(Wash. U. in St. Louis Legal Stud.
Research Paper No. 16-08-03, 2016), available at SSRN
There is a rule in the world of remedies that has always struck me as unfair. The rule, generally speaking, is that damages are not available unless they can be proven with certainty. For example, suppose that I own a pub and hire a karaoke DJ for Friday night. Karaoke is popular in my town and I advertise the event widely. On Friday afternoon, however, the DJ breaches and I’m left without entertainment. During the night, patrons show up and ask about the DJ. Many of them express disappointment; some decide to remain and have a couple drinks but some leave right away. I bring suit for $1,000 in damages. Even though liability is clear in this case, I am not likely to recover a dime in damages because my estimate of damages is, in the eyes of the law, little more than conjecture. If this seems unfair to you, you’re in good company. In fact, some courts see it the same way and have tried to soften the “certainty” requirement by awarding damages that seem like a “good guess.” But the “good guess” approach has its own downside. Guesses are sometimes wrong—especially when the guesser stands to benefit from guessing too high. So what is a court to do?
Scholars and jurists have wrestled with this problem for some time but nobody, to my knowledge, has done so as successfully as Tun-Jen Chiang in his new article, The Information-Forcing Dilemma in Damages Law. Unlike prior scholars, Chiang does not attempt to find the sweet spot between the “certainty” and “good guess” approaches. Instead, he takes a step back and tries to understand the problem. The problem is not simply that we have yet to find the sweet spot; it’s that information deficits force courts to fall back on a general sense of fairness. This sense of fairness will, of course, skew different ways in different cases. Chiang helpfully illustrates how courts oscillate between “certainty” and “good guess” approaches as they attempt to implement vague notions of fairness. In one case (or perhaps one period of time), courts move from “certainty” to “good guess” to ameliorate the unfairness to plaintiffs, but then move from “good guess” back to “unfairness” to ameliorate unfairness to defendants. And then the process starts all over again.
The same information deficit foils other attempts to solve the problem. Instead of choosing between a “certainty” or “good guess” approach, legislatures and courts have also experimented with solutions such damages caps or shifting the burden of proof. But these solutions, Chiang shows, are simply further attempts to pinpoint the appropriate level of fairness in a world of inadequate information. But that approach, like others, is prone to oscillation because fairness concerns will always re-assert themselves.
Once Chiang illustrates the real problem—inadequate information—he proposes a solution. Specifically, he argues that
Courts should require a party to produce damages information . . . if and only if two conditions are met. First, the social benefit of having additional information on some issue must outweigh the social cost of collecting the information and presenting it in court . . . . Second, courts should impose the burden of proof on the party that can more cheaply produce the information required. (P. 46.)
At first glance, the first of these two prongs seems unsatisfying. How in the world will a court determine the “social benefit” of presenting evidence of the business my pub lost when the DJ breached, the “social cost” of adducing this evidence? (Note that these costs and benefits are social, not private; if my private benefit exceeds my private cost, I would collect and produce the information without further incentive.) Chiang recognizes the problem, however. He acknowledges that courts will not be able to precisely calculate these costs and benefits. Yet he defends the criterion, persuasively in my view, as a tool for forcing courts to recognize the trade-offs that are inherent in the choice. When these trade-offs are submerged within the doctrine (as they are now), the doctrine oscillates over time because a given result, when stated in stark, black-and-white terms, appears to ignore costs. When a choice is explicitly acknowledged to be balance of costs and benefits, oscillation should be less common because costs are better (and more openly) accounted for.
The second prong of Chiang’s proposed solution does more than simply remind courts what should matter. It specifically instructs courts to consider who can more cheaply produce evidence of loss and penalize that party for failing to do so. But without knowing the nature of the evidence, how can a court know who can more cheaply produce it? Chiang’s solution is to impose a burden of producing evidence of both parties and then allow the court to penalize the party who could have produced more but didn’t. This would set off, as Chiang puts it, a
virtuous cycle where the threat of a penalty on one side (say the plaintiff) indices the plaintiff to produce more and better evidence, which in turn induces the defendant to produce more and better evidence, and so on—the cycle stops only at the point where both parties have produced all cost-effective evidence and therefore do not expect to be found negligent [in the production of evidence] at all. (P. 54.)
Chiang’s solution strikes me as worth a try. If there a cost-effective way for me to find out how many customers I lost at my pub, I should do so. If I don’t do, but instead throw a big damages number at the court, I should not get the benefit of a “good guess” rule. In contrast, if the DJ can cost-effectively determine how much business I lost but did not do so, he should not get the benefit of the certainty rule. What happens if both of us do our best? This is one place where Chiang comes up a bit short, at least on my reading. He does not appear to address that possibility. To his credit, the problem of damages should be less acute in this context because both parties have adduced as much evidence as feasible, thus making the court’s job easier. But there will still be situations when the amount of damages is uncertain even after both parties have done their best. If the court applies a pro-defendant certainty rule at that point, that would seem to diminish the plaintiff’s incentive to produce evidence up front. That is, the plaintiff can only obtain a pro-plaintiff “good guess” rule if (1) the plaintiff is non-negligent and (2) the defendant is negligent. Perhaps the plaintiff’s incentive to adduce as much cost-effective evidence as possible will still be strong enough given that she cannot capitalize on a defendant’s negligence unless she herself is non-negligent. If that is so, Chiang’s solution is a good one, though it would help to more fully explain that point (which is possible because the article still appears to be in draft form).
In sum, scholars, jurists or practitioners who have found themselves perplexed by the prospect of proving damages should read Chiang’s fine article. He helpfully explains why doctrine in this field has oscillated over time and offers an innovative and efficient way to solve the problem. I enjoyed reading it, lots.
As immigrant communities and immigrants’ rights advocates stare down the barrel of the Trump administration, anti-trafficking appears to be the sole immigration-related issue that might gain bipartisan traction. As has historically been the case with refugees and asylum seekers, Democrats and Republicans may find common ground in concern over the situation of trafficked individuals, especially those subject to sexual trafficking. Refugee advocates and scholars have long raised concerns about the impact of collaborations with strange bedfellows on law and policy-making. Janie Chuang’s article, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, raises a similar set of worries around the anti-trafficking agenda, introducing a new character to the cast: the philanthrocapitalist. This piece presents a comprehensive and thoughtful set of concerns about the outsized and largely unaccountable role of a new generation of hyperengaged donors in shaping the anti-trafficking policy agenda.
In Prof. Chuang’s words, philanthrocapitalism is a “relatively new form of philanthropy, born of a new generation of the ultra-rich who aspire to use their business skills to fix the world’s social problems.” She explains that these donors play a much more direct role in shaping responses to societal issues than philanthropists in previous eras, who gave money to support third parties’ efforts to effect social change. This is a sound analysis, though it then raises the question of whether these are differences of degree or of kind. Philanthropists have always had some control over policymaking agendas through their selection of projects and varying levels of control through reporting and funding mechanisms. What is different about these new philanthrocapitalists?
Prof. Chuang provides several answers to this question through the case study of trafficking. The most meaningful difference is that for previous generations of philanthropists, external critiques of the organizations they funded were not viewed as criticisms of the donors themselves. This is a distinction in kind; because the policy work is directly identified with a very wealthy donor, philanthrocapitalism quells critique in a new and substantially more dangerous way. Another concern raised by Prof. Chuang, that philanthrocapitalists, as successful market actors, are more likely to focus on changing individual behaviors of actors rather than the “structures that undergird global labor markets and labor relations,” is apt, but a difference of degree. Other philanthropists, past and current, have often been marked by a similar hesitance to fund projects that undermine the foundations of their financial success; the same is true for government funding and policymaking. Similarly, Prof. Chuang’s charge that philanthrocapitalists lack accountability constraints is one that could be applied, though less powerfully, to non-governmental organizations funded by philanthropies. These organizations are not subject to democratic processes, and the accountability mechanisms that exist are limited to those created and enforced by donors.
Set in the context of the anti-trafficking movement, Prof. Chuang argues that the dominance of philanthrocapitalism has had particularly pernicious results. She explains that philanthrocapitalists have promoted a discourse equating trafficking and forced labor with slavery. Though powerful rhetorically, this framing focuses attention on the actions of individuals, both traffickers and the trafficked. It thereby absolves the state and corporations for their roles in constructing and perpetuating global economic structures that push individuals to migration as an economic strategy. The “modern-day slavery” frame also enables a crime-control approach to traffickers, and a victimhood approach to the trafficked, who become subjects of rescue and pity rather than agency-bearing individuals.
Prof. Chuang explains that the anti-trafficking movement is currently grappling with the choice between a criminalization approach or a broader strategy that would challenge global systems of exploitation. The corollary concern, of course, is that philanthrocapitalists have outsized power to influence this decision. Prof. Chuang identifies several problems with their dominance of the marketplace of ideas. First, philanthrocapitalists have deep faith and investment in the ability of markets to determine the effectiveness of social programs. In other words, they’re using capitalist tools to fix the shortcomings of the capitalist system. Again, it seems that other philanthropies and state programs would fall into a variation of this critique; these actors are similarly unlikely to present radical challenges to “the current economic and political status quo of global capitalism.” However, a starker difference arises from philanthrocapitalists’ embrace of market-based tools; in particular, Prof. Chuang notes their embrace of quantifiable metrics to assess social programs. This approach, which risks essentializing the complexities of social problems, seems to present a difference in kind from the approaches of other philanthropists, who might encourage the use of metrics but not likely to the exclusion of other assessment methods. An even more concerning shift in kind is the concentration of power in the hands of a few individuals who may own or donate generously to media outlets. The core of Prof. Chuang’s critique of philanthrocapitalism lies here in the consolidation of policymaking authority by a few powerful individuals who are able to effectively quell traditional avenues of criticism and accountability.
Prof. Chuang completes her analysis with a specific case study of the Walk Free Foundation (WFF), which exemplifies many of the concerns she raises earlier in the paper. WFF aims to “end modern slavery” through the use of indicators, namely its annual Global Slavery Index, to measure the problem; the coordination of funds via a public-private partnership; and the vehicle of corporations as change agents. While Prof. Chuang’s critique of the use of ill-defined and unevenly applied indicators to set governance agendas was compelling, her concern about the abandonment of categories separately defined and regulated under international law in favor of the term “modern-day slavery” assumed a rationality to the law and its categories that this reader was less inclined to take at face value.
Otherwise, Prof. Chuang’s concerns are borne out in concrete example. WFF seeks to criminalize the behavior of traffickers and encourage ethical corporate behavior but fails to even raise, let alone enforce, two crucial tools in protecting workers against exploitation: labor standards and inspections. Prof. Chuang also raises a broader point about development discourse: WFF assumes that as economic development increases, slavery will decrease, an approach that points the finger at the global South for the problem of trafficking while absolving the global North of responsibility for global economic inequality that makes migration a crucial economic strategy for the poor. She traces the disturbing muting of critical perspectives and lack of accountability with regard to the work of WFF, though her proffered counterexample, of Humanity United allowing NGOs to set the agenda, retained versions of these accountability and democratic legitimacy problems.
Prof. Chuang closes with a powerful critique of philanthrocapitalism: that needs are determined from the top down, with a preference for dramatic and quick results rather than long-term projects leading to sustainable systematic change. She has made a convincing case to support this argument, though many of her criticisms can also be levied, to a lesser degree, against traditional philanthropies and state-based governance and policymaking. The quest for bottom-up policymaking is noble and necessary, but the challenges of creating real democratic accountability in setting the anti-trafficking agenda remain substantial, as they do more broadly when it comes to global governance of migration.
Learning the substantive law has always been the foundation of a legal education. As job prospects for attorneys tightened, a focus on practitioner skills began trending in legal education. There is an expectation that law schools will produce practice-ready attorneys. Despite this expectation, why are Johnny and Jane unable to research?
Professor Caroline L. Osborne’s research findings have confirmed what many legal educators surmise about the state of legal research education. Her findings demonstrate that legal research education is undervalued in law schools. “For those involved in legal education, the goal is to provide students with the tools they need to succeed . . . . ” (P. 407.) In a carpenter’s arena, the value of the hammer is universally understood. The value of legal research as an essential tool of the legal trade, on the other hand, is not well understood in legal education. This lack of understanding persists, despite the MacCrate report and its ilk, codified ethical obligations of attorneys, and promulgated research competency standards. With this in mind, Professor Osborne presents each contributing factor to the devaluation of legal research education so that the reader is equipped to ponder solutions.
The MacCrate Report was published in 1992, and served as one of the first comprehensive assessments of necessary skills for attorneys and of the legal profession. It declares that legal research skills are fundamental: “It can hardly be doubted that the ability to do legal research is one of the skills that any competent legal practitioner must possess.” (P. 163.) Similarly, Best Practices for Legal Education acknowledges legal research as “essential.” (P. 58.)
The ethical obligations of attorneys further obligate Johnny and Jane. Model Rules of Professional Conduct, Rule 1.1, which has been adopted in whole or in part by all fifty states, holds the lawyer to a certain level of competence:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment 2 to Model Rule 1.1 points out that competent representation requires a lawyer to possess “important legal skills” that are typical in all legal problems. Comment 8 further articulates the need to maintain competence, in part, by requiring technology competency, including those technology skills which are essential for performing research:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, . . .
Technology is a major factor in the devaluation of legal research education. It has enabled the creation of and easy access to massive amounts of information. It has also transformed how we perform research. While the ubiquity of information has made research appear easier, it has actually become a more sophisticated task. To further complicate the picture, Osborne points out that today’s students seem to lack the ability to evaluate information and to think critically.
The ethical standards outlined above are bolstered by Legal Research Competencies and Standards for Law Student Information Literacy, developed and approved by the American Association of Law Libraries in 2012. These standards were promulgated to inform best practices in legal education curricular design and to provide a baseline competency for attorneys in practice settings.
Notwithstanding the existence of these industry standards, Professor Osborne discusses contributing factors for the devaluation of legal research education in law school curricula. Her survey results show, for example, that only 16% of responding institutions have a stand-alone research classes as opposed to being integrated into the legal writing curriculum. She also points out that law school writing programs have been strengthened while the emphasis on research has lessened. Combined, these factors have had an unfortunate impact on legal research education. “[T]he cost of graduating fluent writers should not be the legal research curriculum.” (P. 404.)
Despite what the industry demands, Osborne opines that the current state of legal education—including pass/fail grading, fewer credits awarded compared with other 1L courses, integration with and diminished presence in the writing curriculum—sends the message to law students that legal research education is unimportant. Her thesis is backed up by the findings of a recent BARBRI State of the Legal Field survey: “Faculty placed very little importance on research, with just 4 percent citing it as the most important skill for recent law school graduates . . . .” In our role as legal educators, “we fail to signal the importance of legal research in the practice of law.” (P. 409.)
In this article, Professor Osborne conveys a very important message to legal educators: we should consider ourselves on notice that our actions and our curricula demonstrate a decreased importance of legal research education to our students. As a result, Johnny and Jane are leaving law school without this fundamental tool despite the expectation that they graduate with both the substantive knowledge and the skills to be practice ready and to maintain or exceed industry standards.
Kellen Zale, When Everything is Small: The Regulatory Challenge of Scale in the Sharing Economy
, San Diego L. Rev.
(forthcoming 2016), available at SSRN
There has been a lot of literature about the so-called “sharing” economy lately, in particular focusing on the conflicts over whether and how that economy will fit within the existing regulatory systems at the local, state, and federal levels. And at first blush, the question of whether Uber drivers should be regulated as taxis or not doesn’t seem to have much of a connection with the standard concerns of environmental law—particularly the regulation of large industrial sources of pollution.
But as Kellen Zale’s excellent article points out, the problems that the sharing economy poses to existing regulatory systems are ones that we have seen before, and ones that we will see again. Zale notes that the sharing economy poses regulatory challenges precisely because of its scale of a large number of small activities—thousands and thousands of individual drivers working for Uber or Lyft, or of homeowners renting through Air BnB. Large numbers of individually small activities are incredibly difficult to regulate effectively, and that regulation can impose substantial social costs. As a result, the law has traditionally exempted many small scale actions from regulation. On the other hand, the accumulation of all of these individually small actions can impose significant harms on neighbors, communities, and the environment. For instance, the congestion and noise impacts of large numbers of Air BnB rentals have been a source of major complaint in some tourist communities. Zale also identifies how the sharing economy is but one example of this phenomenon—a growth of the impacts from individually small activities to the point at which regulation is required—and discusses how it can be discerned in a range of areas, including landlord-tenant law.
I particularly enjoyed Zale’s efforts to identify solutions to the challenges posed by the sharing economy—options including co-regulation (in which the private industry is part of enforcement efforts in cooperation with the government), the use of private standards, and simple fee structures. While Zale certainly does not exhaust the range of possible options, her efforts are an important starting point for developing policy responses.
While Zale’s work focuses on the sharing economy, I think the issues she identifies, the questions she asks, and the policy ideas she develops will be important for environmental law far beyond the sharing economy. The future of the next century will be increasingly a story of rising human pressures on our planet as a result of the accumulation of billions of individual decisions about how to use resources and what lifestyles to live. In major urban areas in the United States, much current air pollution is the result of activities as small as filling gasoline tanks in cars, painting houses, dry cleaning clothes, and burning wood in fireplaces. Some of these challenges can be covered by upstream regulation (e.g., reformulating paints to reduce emissions, more efficient gas tanks). Others will require more direct intervention in individual activities (e.g., enforcing requirements on separating recycling materials from trash, restricting the use of fireplaces). Ensuring that these regulations will be politically palatable and fair in the burdens they impose on individuals will require the development of many creative solutions along the lines Zale develops. I am glad she has helped start that conversation.
For undocumented immigrants, deportation is a constant looming threat. Given the harsh and broad categories of things that an immigrant can do to become deportable, the unfairness of the deportation adjudication system, and the devastating consequences of deportation, it makes sense that immigration law scholars focus on the phenomenon of deportation. Nathalie Martin, whose primary scholarly focus is not immigration law, reminds immigration law scholars that, unfortunately, there are many problems to explore beyond deportation.
Martin explores themes of scarcity by reporting on what she learned through a qualitative study of 50 undocumented immigrants in New Mexico. The study, funded by the National Conference of Bankruptcy Judges, investigates the banking and credit habits of undocumented immigrants through a snowball sampling technique. In Survival in the Face of Scarcity, Martin uses data from the study to explore how issues of scarcity are compounded for a population without legal status. As Martin explains, her findings “show a perfect storm” (P. 109) where individuals with limited rights are fearful to assert any legal rights they have.
Scarcity means having less than one needs. Martin adopts Sendhil Mullainathan and Eldar Shafir’s work on scarcity theory to help frame her study results. In her study population, Martin recognizes the bandwith tax (P. 111) discussed by Mullainathan and Shafir. The “drastic economic scarcity” (P. 114) of her subjects clearly was taking its toll, mentally and emotionally, especially in terms of the ability to cope with unplanned expenses. This economic scarcity itself was not surprising; , more surprising to Martin was the discovery that her subjects categorized unplanned expenses differently than she did. To her subjects, job loss was an expected event. Martin concluded that creating a budget as an undocumented immigrant “just doesn’t work.” (P. 119.)
After exploring how scarcity affects her study population, Martin argues strict immigration laws that allow no hope of regularizing status, the threat of deportation, and ineffective consumer protection laws create a scarcity tornado that is difficult to escape. Martin’s subjects know that they are vulnerable. They know that their lack of legal immigration status means they do not have a level hand in economic transactions or in employment relationships. This makes them hesitant to exercise any legal rights they may have outside of immigration law, either informally (for example, complaining about a billing error) or more formally through the courts.
Participants in the study were asked “if they feel comfortable using the court system to right a wrong.” (P. 130.) Only 32% answered yes. For 42% of the study participants, court was not an option, and 26% were not sure if they would use the court system. Participants expressed fear of deportation or an acceptance that a lack of legal status means one should not expect fair treatment as reasons not to pursue a legal claim. This means that fear of deportation (even if wholly unrelated to a potential legal claim) and a general sense of second-class status keep the individuals in Martin’s study from vindicating the legal rights that they do have in the employment, contract, and landlord-tenant contexts.
Interestingly, despite the scarcity in which they live, participants in Martin’s study expressed reluctance to accept government benefits. Undocumented immigrants are ineligible for most kinds of government aid. Even when an individual or someone in the individual’s mixed status family might be eligible for a benefit, Martin reports that the study participants expressed a strong preference to make it on their own.
Martin’s study reminds us that being an undocumented immigrant is not easy. This may seem like a simple lesson, but it is one that bears repeating. While Martin’s study group is only a small slice of the undocumented population, Martin’s study helps to rebut misleading political discourse that promotes a narrative that it is uncomplicated to be undocumented in the United States. Of all the challenges identified by Martin, the one that perhaps should be most disconcerting to law professors is a grudging acceptance that the vindication of legal rights is not practical. This is a major problem beyond deportation. Martin’s study prompts us to ask whether this is an acceptable status quo.
And here is where immigration advocates, policymakers, and scholars will step in with their expertise. The immigration laws of the United States are badly in need of reform. That reform must include a path to legalization for undocumented immigrants. Only then will Martin’s study participants be able to begin to escape the scarcity and vulnerability that negatively impacts their lives and the lives of their U.S. citizen relatives.
Cite as: Jill Family, Problems Beyond Deportation
(January 6, 2017) (reviewing Nathalie Martin, Survival in the Face of Scarcity: The Undocumented Immigrant Experience
, 58 Ariz. L. Rev.
103 (2016)), http://lex.jotwell.com/problems-beyond-deportation/
Professor Daniel Hatcher’s new book opens up new, fertile, ground for poverty law scholarship and critique. The book contributes not only to our understanding of how “cooperative” federalism—which is a crucial part of many anti-poverty programs—works in practice but also the impact that state budget shortfalls can have on the most vulnerable members of society. The Poverty Industry shows the myriad ways that states, in collusion with private companies, misuse money meant to help the poor, primarily by diverting federal matching funds from their intended purposes into the general fund. Hatcher’s three main examples—taken from the foster care, Medicaid, and child support programs—highlight the perverse incentives that lead state agencies to take actions that directly contradict their mandate in order to provide states with additional unrestricted revenue.
With the support of private companies contracted to maximize money collected either from the federal government or from the poor themselves, states are neglecting and, worse, directly harming whole groups of those with the greatest needs. As Hatcher shows states are taking social security, even survivor, benefits from children in the foster care system while acting as the childrens’ “representative payee.” (Pp. 65-110.) To game federal Medicaid payments, states use shell games that involve falsely inflating state Medicaid contributions on paper–using a variety of techniques from creating fully refunded bed taxes on hospitals to making elevated payments to providers–that are immediately kicked back to the general fund. (Pp. 111-42.) With the assistance of private contractors, states aggressively pursue child support payments and then, in the name of “cost recovery,” divert what little money is collected from the kids who should benefit to the state budget. In their aggressive pursuit of child support the states effectively ignore both the “best interests of the child” standard and the often destructive consequences to the often fragile relationship between fathers and mothers. (Pp. 143-79.) The Poverty Industry ends by giving other examples of how states and municipalities seek to profit off the poor, ranging from drugging the elderly to reduce expenses at state nursing homes to paying for basic services such as courts and policing through fees and fines. (Pp. 183-206.) In the wake of the shooting of Michael Brown in Ferguson, there has been increased attention to how such revenue generation tactics, in the context of racism and the criminalization of poverty, can harm whole communities. Hatcher makes a compelling case that state agencies, in their quest to generate revenue for themselves or for the general state budget, have lost sight of their mission to help those in need.
Though the book does include in a bit too much unnecessary repetition (it could probably be twenty pages shorter), by combining numerous examples of how funds are systematically and wrongly taken from the poor with insightful analysis linking the chosen examples, Hatcher has exposed previously underappreciated features of society’s antipoverty programs. Hatcher’s proposal for how to rein in “the poverty industry” is well-supported by the many examples and is fairly straight-forward: “We can all disagree about the best way to help vulnerable populations. And we will. But we all should be able to agree that when aid funds are generated with specific intent to help those in need, those funds should be used as intended.” (P. 207.) Although such a proposal seems fairly modest, if implemented it would involve numerous agencies at the state and federal levels and would result in a significant increases in funds that are not only ear-marked for the poor but actually reach them. It also, in keeping with the book’s focus on real world examples, is a proposal that could find enough political traction to be implemented.
Let me end by noting that The Poverty Industry illustrates how expansive “poverty law” can be as an organizing concept. Hatcher could have given the book a different title—The Problem with Cooperative Federalism or Ripping off the Federal Government—but as he shows, these state schemes ultimately are harming the poor. Even though some of the examples are well known, such as the difference in support for poor families versus foster care families, The Poverty Industry offers a wealth of new examples for most poverty law readers. Through FOIA requests, Hatcher was able to learn a great deal about the inner workings of the companies tasked with extracting as much money as possible from the federal government and from poor people and about the sketchy connections between these companies and state agencies. As with most books about poverty, The Poverty Industry is not a joy to read—on its surface it goes into considerable detail on a range of poverty programs and beneath its surface lurks the pain of those harmed by the practices the book details—but it is a book well worthy of attention and quite an achievement for Professor Hatcher.
Cite as: Ezra Rosser, Robbing the Poor
(November 23, 2016) (reviewing Daniel L. Hatcher, The Poverty Industry: The Exploitation of America’s Most Vulnerable Citizens (N.Y.U. Press
, 2016)), http://lex.jotwell.com/robbing-the-poor/
Sara K. Rankin, The Influence of Exile
, 76 Md. L. Rev.
(forthcoming 2016), available at SSRN
The discourse of poverty law in the United States is on the rise. Following the Great Recession of December 2007 to June 2009, the odd yet telling disparagement of “law and poverty” by the late Antonin Scalia in September 2008, and the Occupy Wall Street protests that erupted into public consciousness in September 2011, poverty law scholars have published three new casebooks, organized a new series of conferences hosted by law schools in California, Washington, and Washington, D.C., contributed to the theme for other ongoing conferences such as ClassCrits (Toward A Critical Legal Analysis of Economic Inequality), and assembled in well-attended panels at the annual meeting of the Association of American Law Schools.
In The Influence of Exile, Sara K. Rankin, associate professor of law and director of the Homeless Rights Advocacy Project of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, contributes to that discourse by theorizing “the influence of exile”—the well-documented drive to exclude disfavored groups of people by restricting their rights to access and occupy public space. (Pp. 1-2.) The influence of exile has taken myriad forms throughout United States history (e.g., Slave Codes, Black Codes, anti-miscegenation laws, and Jim Crow regimes; Asian exclusion laws, Mexican “repatriation” campaigns, and Anti-Okie laws; redlining regulations, policies, and practices; and “Sundown Town” policies and practices), but Rankin argues persuasively that the influence of exile perseverates today in a distinctive “social-spatial segregation [that] further entrenches stereotyping, misunderstanding, and the stigmatization of marginalized groups.” (P. 11.) Her article abounds with insights into these matters. Here I discuss three of them—the visible poor; sociolegal control of public space; and disgust, affect, and ideology.
Rankin critiques the official definition of homelessness and urges a reconceptualization by way of Joel Blau’s notion of the “visible poor.” (Pp. 2 n.8, 3 n.11.) The visible poor includes not only people whom the United States Department of Housing and Urban Development officially counts as homeless but also a substantially larger part of the forty-three-plus million people whose poverty combines “with housing instability, mental illness, or other psychological or socio-economic challenges that deprive them of reasonable alternatives to spending all or the majority of their time in public.” (P. 2.) Like the move urged in 2014 by the ClassCrits group, to contextualize poverty and inequality in relation to precarity and work, Rankin’s rhetorical shift from the homeless to the visible poor promises a better approach to analyzing and intervening against the contemporary “criminalization” laws and policies that target such people. (Pp. 43-44, 48-49, 52.) For example, implicating a larger part of the forty-three-plus million poor people in the United States—over thirteen percent of the populace—helps to move the proliferation of laws that criminalize the visible poor from the margins and may help to organize more effective counters to the influence of exile.
Rankin characterizes the past twenty years as a period in which “the combination of economic conditions, broken window ideologies, and the human drive to exile created a perfect storm for the increasing enactment of laws that purge signs of visible poverty from public space.” (P. 42.) Drawing on interdisciplinary urban studies, she argues that the privatization, commercialization, festivalization, and sanitization of public space all contribute to the problem. (Pp. 39-41.) In particular, business improvement districts, which cities have increasingly imposed on their traditional downtown areas, exemplify these sociolegal processes and political projects. (Pp. 41-42.) For Rankin this situation amounts to one that sociologist Talmadge Wright has conceptualized in terms of “battles for ‘tactical control’ of public space.” (P. 3). Rankin argues persuasively that, “in this context, the mere existence of homeless [and visibly poor] people in public space is an act of resistance.” (P. 56.) In her view, sociolegal controversies over the visibly poor express the ideological and material class relations that construct, naturalize, and ultimately control “public space.” (Pp. 9, 57-58.) In particular, “visible poverty as a form of protest challenges the American conscience to grapple with its own complicity in creating the circumstances within which homelessness and poverty can thrive.” (Pp. 57.)
In the longest part of her article, Rankin synthesizes studies from psychology, social psychology, social neuroscience, and sociology, which explain the group and individual dynamics that animate people to differentially identify with and include others, or instead to misrecognize, exclude, marginalize, and ultimately exile strangers. (Pp. 5-24.) In particular, social neuroscience findings confirm, “that today, society tends to regard homeless and visibly poor people with disgust and rejection at higher rates than most any other perceived status.” (Pp. 12 n.46.) Though some people may find the claim controversial, Rankin explains that, “Studies show visible poverty elicits higher rates of disgust than nearly any other commonly marginalized trait, including racial or ethnic indicia.” (P. 15 n.60.) She acknowledges that people whose ethnicities are racialized into a minority group status tend to be poorer in income, own less wealth, and be otherwise worse off than people whose ethnicities are racialized into the majority white group status. (Pp. 5-7, 12-15.) However, she hypothesizes that the stigmatization of poverty may have become a sanitized way to express otherwise disfavored forms of prejudice. (P. 16 n.63.) Instead of “overt expressions of bias . . . with respect to race and gender, and perhaps increasingly, with respect to sexual orientation and identity . . . the American conscience may be sanitizing many forms of discrimination to appear as something less objectionable or actionable: judgments about social worthiness.” (Pp. 18-20.)
Thus, the influence of exile troubles Rankin in at least two ways: first, it feeds on the disgust that individuals, who are ostensibly not poor (or at least perceive themselves not to be poor), feel when confronted with visibly poor people: they perceive these “strangers” as not only unsightly and dirty blemishes in public space but also as dangers who symbolize human “broken windows.” (Pp. 22-23, 25-26, 36-38, 59.) Second, United States society and culture have evolved an ideology to legitimate and reinforce the disgust that (some, many, most?) individuals feel when confronted with visibly poor people. Instead of allowing this feeling to be identified as invidious discrimination, this ideology cloaks individuals’ feelings of disgust beneath the mantle of a sober judgment about blameworthiness and just deserts. (Pp. 20-21.)
The influence of exile, Rankin argues, thus degrades not only the visibly poor themselves, but also the legislators, judges, and citizens who accede to popular animus against them. Indeed, the influence of exile degrades all of us who allow ourselves to become complicit in the sanitization (privatization, commercialization, festivalization) of public space, and the criminalization of the visibly poor—in a word, exile.
Shakepeare’s Prince Escalus, the ruler of fair Verona, declared at the end of Romeo and Juliet:
See what a scourge is laid upon your hate,
That heaven finds means to kill your joys with love.
And I for winking at your discords too
Have lost a brace of kinsmen: all are punish’d.
According to Rankin, under the influence of exile, here too “all are punish’d.” Thus, she argues for the law—legislators, judges, and the polis—to recognize its invidious influence, to confront its pernicious effects, and ultimately to protect “the rights of all people to exist in public space or, more fundamentally, to exist at all.” (P. 59.)
Every day, across the criminal justice system, state and private actors wield discretion in making decisions: Is a girl standing before a police officer, prosecutor, child welfare official, or social worker a victim in need of protection or a perpetrator, in need of punishment? Does she need harsh correction or gentle, resource-rich protection? Is she a prostitute or is she a victim of trafficking? In (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, Priscilla Ocen presents compelling data suggesting that these discretionary decisions open a door to the exercise of implicit bias and lead to devastating outcomes, disproportionately removing Black girls from the realm of protection embodied by anti-trafficking laws and placing them squarely in the hands of the punitive mechanisms of the juvenile justice system. These facts are tremendously important but, sadly, not surprising. They only add to the wealth of information definitively establishing the disproportionate negative outcomes for Black women, men, boys, and girls in the social welfare, child welfare, criminal, and juvenile justice systems.
While the statistics are jarring, the important questions to ask are causal: Given that Black girls are disproportionately vulnerable to exploitation and disproportionately victimized, why, as a society, do we tolerate them being disproportionately punished? Why are they not, as both the data and intersectionality theory might suggest they should be, at the very center of our efforts to protect girls?
Ocen’s major contribution is her ability to help her readers ask, and begin to answer, these questions. She deftly draws the lens back, helping us understand how history, social construction of identity, implicit bias, failing social institutions, and legal mechanisms allowing for discretionary determinations work together to produce these outcomes. Here we see clearly structural racism and gender bias at work. We see embodied, too, the very real human impact of failing to think and work intersectionally as we purport to solve social problems. To make these crucial arguments, Ocen beautifully marries the particular with the more general, interweaving narrative, data, theory, sociology, history, and psychology in her text.
Ocen argues that while we have a strong cultural construct equating childhood with innocence and the need for protection, Black girls occupy a space of “liminal childhood,” placed at the excluded margins of idealized forms of white girlhood, both included in the concept of girlhood for the purposes of rights deprivation but excluded from notions of childhood innocence. Black girls are “at once viewed as dependent, limited rights-bearing subjects while at the same time they are imbued with adult characteristics such as sexual maturity, individual agency, and criminal responsibility.” (P. 1594.) If the image of the trafficking victim is the innocent girl next door, the Black girls are Jezebel, excluded from protection, blamed for their actions and subject to punishment as prostitutes. Taking us through history, from slavery and the black codes forward, Ocen traces the roots of these powerful cultural stories, arguing compellingly that the reasons that we, as a society, have tolerated Black girls’ disproportionate victimization and punishment are found in this history. But the answers to those why questions are rooted not only in powerful, historical imagery but in important cultural institutions: under-resourced communities; failing schools; high crime rates; and “limited housing, education, and health care” (Id.) all explain why Black girls are situated in positions that make them more likely to be targets for sexual exploitation than their white counterparts.
Ocen’s solutions flow directly from her careful analysis: remove discretion of police, prosecutors, and other state actors by enacting mandatory decriminalization; focus on institutional structures that render Black girls more vulnerable; and establish “race-conscious and gender responsive programs in schools and other social service agencies … where Black girls are most vulnerable to being trafficked.” (P. 1595.) Ocen proves, once again, that intersectionality is not just a theory. It is lived reality, and applying its lens exposes deep injustices and leads toward solutions that address some of our most pressing societal problems.