Nov 1, 2022 Bethany BergerNative Peoples Law
Michael Velchik & Jeffery Zhang,
Restoring Indian Reservation Status: An Empirical Analysis, 40
Yale J. Reg. ___ (forthcoming 2022), available at
SSRN.
In Restoring Indian Reservation Status: An Empirical Analysis, Michael Velchik, and Jeffery Zhang provide some of the most rigorous empirical evidence to date on the economic impact of reservation status. Although I discuss limitations to their data below, the article provides a welcome counterpoint to repeated arguments—to the Supreme Court, Congress, and elsewhere—that affirming reservation boundaries will destroy existing economies.
These assertions gained nationwide attention when the Supreme Court decided McGirt v. Oklahoma. The Court held that Congress had not erased the treaty boundaries of the Muscogee (Creek) Reservation. Lower courts soon applied the decision to hold that the reservations of the Cherokee, Chickasaw, Choctaw, and Seminole Reservations—which occupy the rest of eastern Oklahoma—remained as well. In briefing and oral argument, Oklahoma and its amici insisted that affirming reservation status would be terrible for the safety and economy of the area. I have worked on several reservation boundary cases now, and these kinds of arguments—what Velchik and Zhang call the Falling Sky thesis–are trotted out every time. And for good reason: the Supreme Court allowed current demographics to distort its interpretation of congressional intent in South Dakota v. Yankton Sioux Tribe, and Hagen v. Utah and created an entirely new rule to maintain state jurisdiction over tribal lands within the undiminished Oneida Indian Reservation. (Sherrill v. Oneida Indian Nation of New York.)
The McGirt majority, however, refused to let these “sadly familiar arguments” persuade it to “cast a blind eye” to the injustice of undermining treaty-promised reservations. It also cited the brief I helped write for the National Congress of American Indians, arguing that other non-Indian communities do just fine within reservation boundaries. But, four other Justices were worried that the sky really would fall. In a dissent authored by Chief Justice Roberts, they chided the majority for having “profoundly destabilized the governance of eastern Oklahoma” and creating “significant uncertainty for the State’s continuing authority” over areas “ranging from zoning and taxation to family and environmental law.” Since then, Oklahoma has tried to play on those fears (and on Justice Ginsburg’s replacement by Justice Barrett), filing over 40 certiorari petitions seeking to overturn McGirt.
Velchik and Zhang try to bring facts to bear on the stories litigants and judges tell. They characterize these stories as falling into four camps. First, the aforementioned Falling Sky model argues that reservation status is just bad for local economies. Second, the Economic Stimulus model responds that reservation status may actually benefit local economies. Third, the Uncertainty Shock model (which they somewhat charitably ascribe to the McGirt dissent) asserts that the uncertainty caused by the change will undermine local economies. Finally, what they call the Game Theory model posits that governments will recognize the benefits of cooperation and adjust to protect the economy regardless of formal authority.
Velchik and Zhang use a clever natural experiment to test these models. Looking at Oklahoma and five other areas where reservation status was litigated, they compare trends in GDP and employment in counties affected by the decisions with those in neighboring counties. (The other areas are the Omaha Reservation, whose boundaries were affirmed by Nebraska v. Parker, the Saginaw Chippewa Reservation, whose boundaries were settled by Saginaw Chippewa Indian Tribe v. Granholm, the Puyallup Reservation, whose boundaries were settled by Pub. L. No. 101-41 (1989), the Oneida Indian Reservation, a somewhat more complicated case where Sherrill v. Oneida Indian Nation of New York, undermined the impact of reservation status, and the Yankton Sioux Reservation, whose boundaries were diminished by South Dakota v. Yankton Sioux Tribe ) Although many factors may contribute to economic trends, by comparing both trends before and after the decisions and between the affected county and neighboring counties, they can significantly isolate the impact of the decisions themselves.
This is the headline: their data show no negative economic impact of reservation status. In some instances, employment trends even improved compared to neighboring counties, but the results were not statistically significant. As they say, the results are powerful evidence against the Uncertainty Shock model and tantalizing (but far from conclusive) evidence of the Economic Stimulus model.
Beyond undermining the Uncertainty Shock model, however, their analysis has significant limitations. One involves the time periods it covers. In each case, their analysis stops two years after the final decision regarding reservation status. This means that the data do not necessarily reflect the effect of reservation status itself but rather the effect of the sudden change in perceived status. This is a powerful counter to the Uncertainty Shock thesis, which is based on change alone. It is also some evidence against the extreme forms of the Falling Sky thesis: skies don’t usually take two years to fall.
Without a longer stretch of time, however, it is only weak evidence regarding the general economic effects of reservation status. The first two years after a change in reservation status may reflect expectations and uncertainty by economic actors, but the impact of legal changes caused by reservation status itself might well take longer to appear. The initial period after a decision may also be characterized by heightened efforts by all parties to avoid rocking the bus, providing unwarranted support for the Game Theory thesis. Measuring changes over a longer period, however, might introduce more differences other than the change in reservation status, limiting the value of the authors’ difference-in-difference analysis.
There also are some difficulties in how the authors treat decisions that certain lands lack reservation status. All of the decisions they consider involve cases in which states and local governments acted as though reservations did not exist. Therefore, a formal decision against reservation status—like that in South Dakota v. Yankton Sioux Tribe—is not a significant change in the status quo. Similarly, when the Saginaw Chippewa and Puyallup Tribes entered into settlements affirming parts of their historic reservations and ceding claims to other parts, the impact is generally to increase the area with de facto reservation status, even though earlier decisions suggested a larger area was in play.
Altogether, however, Velchik and Zhang shed important light on the heat of unsupported assertions of reservation status. Federal Indian law litigation far too often turns on such unsupported parades of horribles. May their work be followed by similarly creative and rigorous responses.
Oct 28, 2022 Felix MormannEnergy Law
In February of 2021, winter storm Uri wreaked havoc in Texas. Temperatures that would barely raise an eyebrow in the upper Midwest or Northeast caused two in three Texans to lose power, often for days. Water supply systems and other electricity-dependent essential services collapsed in Austin and elsewhere, some taking weeks to come back online. Hundreds died, and the storm’s disruptive impact on the local economy caused billions of dollars in damages. Texas Governor Greg Abbott and other politicians were quick to blame the state’s solar and wind generators for the widespread blackouts. Closer scrutiny, however, soon revealed that outages at fossil-fuel plants, not their renewable counterparts, were the primary cause of cascading blackouts. In fact, local solar and wind generators performed significantly better throughout Uri than the Lone Star State’s natural gas-fired power plants.
In their excellent new article, Grid Reliability Through Clean Energy, professors Alexandra Klass, Joshua Macey, Shelley Welton, and Hannah Wiseman draw on the Texas experience to debunk the common misconception that grid reliability and clean energy are at odds with one another. On the contrary, the authors argue, “the only way to secure a reliable grid under conditions of climate change is to rapidly engage in a clean-energy transition in the electricity sector.” (P. 978.) After all, global warming and other manifestations of our changing climate increase both the frequency and severity of extreme weather events like winter storm Uri. Sure, grid operators could weatherize coal and natural gas-fired power plants as well as their fuel supply to keep them running longer. But to do so would also increase the power sector’s greenhouse gas emissions, exacerbating reliability threats from climate change.
Why, then, does conventional wisdom still posit clean, low-carbon energy and grid reliability as dueling objectives rather than dual benefits of thoughtful climate and energy policy?
Professors Klass, Macey, Welton, and Wiseman convincingly argue that a series of disconnects, or “silos,” within the energy policy domain forestall a better understanding and alignment of reliability and decarbonization goals. Energy policy, they explain, is “siloed along three separate planes: (1) across environmental and reliability goals; (2) among jurisdictions (federal, regional, state, and sometimes local); and (3) along a public–private continuum of actors.” (P. 979.) For too long, the authors argue, policymakers and scholars have focused overwhelmingly on clean energy policy–with little regard for its interaction, and potential synergies, with reliability policy. Grid Reliability Through Clean Energy offers a suite of substantive and structural recommendations to facilitate better coordination and collaboration among previously siloed entities to craft and implement policies that simultaneously advance decarbonization and reliability objectives.
The authors offer four compelling case studies from across the electricity value chain to corroborate their silo theory and to anchor their policy recommendations. The first case study compares different approaches to valuing and integrating an ever-expanding range of energy resources into the nation’s various power markets. Parts of the country actively discriminate against weather-dependent solar and wind generators, while others afford privileged treatment to legacy coal plants, all in the name of grid reliability. Meanwhile, many regional electricity markets fail to accommodate state and federal clean energy policies. To remedy the resulting tensions, the authors call for rethinking the holy grail of “resource adequacy” to incorporate state policies and “prevent reliability goals from operating at cross purposes with clean energy goals.” (P. 1021.)
Next is the expansion of the nation’s electricity transmission infrastructure–a project of massive proportions that promises enormous reliability benefits while enabling greater development of low-carbon generation. Running the necessary wires, however, requires balancing private and public interests across federal, regional, state, and local levels of governance. The authors do an outstanding job of laying out the multitude of competing interests as well as the governance structures that tend to prevent direly-needed progress, from methodological differences in benefits valuation to jurisdictional conflicts to utility exits. The reader can sense the frustration that prompts the authors to concede that, unlike in the other case studies where silos can be maintained, albeit in a more connected line-up, “in this case, the state, regional, and federal silos must actually be broken down, not accommodated.” (P. 1035.)
The third case study hones in on the North American Electric Reliability Corporation (NERC), the private non-profit corporation tasked with regulating the U.S. grid’s reliability under the supervision of the Federal Energy Regulatory Commission (FERC). Returning to winter storm Uri, the authors offer persuasive evidence that NERC’s failure to turn non-binding recommendations into mandatory regulations exacerbates reliability challenges in Texas and beyond. The authors’ triage suggests that this laissez-faire approach is, at least in part, the product of dominating private utility influence within NERC and its balkanized regional subsidiaries. Accordingly, they prescribe remedies including enhanced public-private coordination as well as a more holistic view of reliability that recognizes solar, wind, and other renewables as potential assets rather than liabilities in keeping the lights on.
Regional Transmission Organizations (RTOs) that manage the grid for two-thirds of the country are at the heart of the final case study. While policymakers and scholars gravitate toward regional governance as the ideal scale for grid management, the authors caution that the mode of said management is at least as important as its scale. A range of examples illustrate the bias toward conventional, fossil resources that dominate among the utilities and transmission companies, who, in turn, dominate the membership and governance of RTOs. In the level-headed analysis that distinguishes the article throughout, the authors emphasize that suboptimal grid management by an RTO may still be better than the management practices observed in regions without RTOs. This is but one of many examples of the authors’ sense of realism that informs their ambitious, yet feasible policy recommendations. Would Congressional action be nice? Sure. In its absence, however, there are a number of existing legal authorities that FERC could use to help overcome RTO resource bias and facilitate broader recognition of clean energy’s reliability benefits.
Whether your scholarly interests lie in energy law, administrative law, climate policy, federalism, or anywhere in between, Grid Reliability Through Clean Energy is a must-read. Professors Klass, Macey, Welton, and Wiseman have each, individually, produced plenty of impactful scholarship on (clean) energy policy. With Grid Reliability Through Clean Energy, they have proven that, in the very best collaborations, the end product is, indeed, greater than the sum of its parts. In fact, I am now thinking of the four as The Beatles of Clean Energy. Like Harrison, Lennon, McCartney, and Starr, each of these professors is a rock star scholar in their own right. But bring the four of them together, and you get something truly special. Here’s hoping that Klass, Macey, Welton, and Wiseman are already working on their next album. We could all use a good soundtrack on the long and winding road to a cleaner, more reliable power grid.
Oct 20, 2022 Angela BanksImmigration
In September of 2021, Haitian migrants, attempting to return to a migrant camp in Del Rio, Texas, were met with U.S. Border Patrol agents on horseback with whips. The Haitian migrants had gone to Mexico to obtain food for their families, as there was insufficient food at the camp. Upon their return, Border Patrol agents attempted to push the Haitian migrants back across the Rio Grande to Mexico. One viral image showed a Border Patrol agent on horseback holding a whip and grabbing a Haitian migrant by the back of his shirt. Kit Johnson’s recent article, Women of Color in Immigration Enforcement, raises interesting questions about whether or not the growing number of women of color in immigration enforcement could positively impact the “use-of-force culture in the federal immigration enforcement context.” (P. 997.)
Johnson’s article introduces new demographic data about immigration enforcement officers that demonstrates that the majority of female immigration enforcement officers are women of color. In light of this new information, Johnson introduces a research agenda to examine the impact and experiences of women of color within immigration law enforcement. While scholars have explored the experience and impact of Latinx immigration enforcement officers, the experience and impact of women of color specifically has not been explored. Now that more granular demographic data is available, women of color can be the focus of analysis.
The article begins with an overview of the functions of three key immigration enforcement offices within the Department of Homeland Security (“DHS”): the Office of Field Operations (“OFO”) within U.S. Customs and Border Protection (“CBP”), U.S. Border Patrol (“USBP”) within CBP, and Enforcement and Removal Operations (“ERO”) within U.S. Immigration and Customs Enforcement (“ICE”). After describing and contextualizing the work of these agencies, Johnson details the legal tools that have led to the diversification of immigration enforcement. Federal legislation, like Title VII of the Civil Rights Act of 1964, Executive Orders, and agency rulemaking have prohibited employment discrimination within the federal government, encouraged increasing the number of Latinx individuals employed by the federal government, and promoted federal employment as a place of “equal opportunity, diversity, and inclusion.” (P. 1008.) Due to Management Directive 715 by the Director of the Federal Sector Programs Office of Federal Operations Equal Employment Opportunity Commission DHS was obligated to “identify barriers to creating a more diverse immigration workforce.” (Id.) This led to efforts to recruit more enforcement officers who are people of color and/or women. (P. 1009.)
Recent data suggests that the DHS efforts have successfully diversified some of the immigration enforcement agencies. For example, 13 percent of ICE officers are women, as are 19.6 percent of CBP officers. Compared to local police departments, where 12.6 percent of officers are women, ICE is in line with national figures and CBP is ahead. (P. 1011.) Yet, U.S. Border Patrol is significantly lower at 5.5 percent female officers. (Id.) The insight offered by Johnson’s essay is that the majority of the women within immigration law enforcement are women of color. For example, 55.1 percent of female CBP officers, 58 percent of female ICE ERO officers, and 54.1 percent of female U.S. Border Patrol officers identify as women of color. (P. 1012.) Johnson also notes that a greater percentage of female immigration enforcement officers identify as Black, Latinx or multi-racial than male officers working for CBP, ICE, and the U.S. Border Patrol. (Id.)
There is little research examining the impact that the diversification of immigration enforcement along the lines of race, ethnicity, and gender has had. Johnson offers a framework to begin this analysis. Applying David Alan Sklansky’s framework for evaluating the effects of diversity within local law enforcement to immigration enforcement, Johnson examines (1) competency effects, (2) community effects, and (3) organizational effects. Competency effects explore the “skills and abilities of the workers.” Community effects examine the implications “for the relationship between the agency and the community it works with.” Organization effects look at the “ways in which employees affect their workplace.” (P. 1013.) Johnson’s essay begins to analyze these factors but acknowledges that additional empirical research is needed to address the organizational effects properly. Additional issues to address in future research would be: Why does the U.S. Border Patrol have such low numbers of women across the law enforcement spectrum? Why does CBP have higher numbers of women within immigration law enforcement and local law enforcement more broadly? Finally, it would be interesting to see how the immigration enforcement figures compare to other federal law enforcement agencies. It is possible that the organizational culture of each of these immigration enforcement agencies provides insights. Yet additional research is necessary to determine how different the agency cultures are, and what if any impact it has on the demographics of the officers.
In light of the images seen by the world in the Fall of 2021, Johnson’s call for increased scholarly attention to the growing number of women of color within immigration enforcement is timely. In addition to the question she identifies for further research, I would add the following: with regard to community effects, what are the strategies and techniques used by female officers that enable them to de-escalate situations successfully? To what extent can this lead to new forms of training that could have organizational effects? Additional organizational effects to explore would be, does an increase in the number of women and/or women of color within an enforcement agency change other aspects of the culture?
Sep 20, 2022 Wendy Anne BachPoverty Law
Abolition is, as we have been well taught, at a minimum, a vision, a process, and a “theory of change.” (P. 867.) It is also crucially about power and resource allocation. Specifically, the transfer of power and resources away from those who have built institutions that reify white supremacy and to Black (and often intersectionally Brown, disabled, poor, Indigenous, Queer) communities subject to that institution’s violence. For academics and policymakers seeking to participate, one among many essential tasks is to attempt to step back and begin to understand how abolitionist praxis envisions change. This question is, at the very least, about who is in charge of change and how change happens. The who is clear. Change is led primarily by those most acutely subject to white supremacy’s violence. As to the how, abolitionists “recognize that the world may not change tomorrow; however, [they] also reject incrementalism that reinforces the status quo and entrenches oppressive cultures.” (P. 890.)
Visioning abolition and understanding the difference between reform proposals that would “reinforce the status quo and entrench oppressive cultures” and those that would be a step toward the vision were at the heart of a recent, groundbreaking symposium. Sponsored by the Columbia Journal of Race and the Law, Strengthened Bonds: Abolishing the Child Welfare System and Reenvisioning Child Well Being, marked the occasion of the twentieth anniversary of Dorothy Roberts’s Shattered Bonds: The Color of Child Welfare, by renaming the child welfare system as the family regulation, family policing or family destruction system (P. 883) and by calling for its abolition. The proceedings and papers are quite astounding and easily the subject of several entries in this particular, celebratory forum. But because I had to choose and because of the importance of understanding the vision, the specifics of abolitionist theories of change, and ways in which well-meaning professionals can get in the way of these goals, I feature a symposium piece that is beautiful, inspiring, and profoundly challenging: Ending the Family Death Penalty and Building a World We Deserve, co-authored by Ashley Albert, Tiheba Bain, Elizabeth Brico, Bishop Maria Dinkins, and Kelis Houston. My purpose here is simply to highlight some of what they share and to strongly encourage you to spend some time reading and reflecting on the article in full.
The authors describe themselves as “directly impacted mothers, community organizations, and allied advocates across the country” who have been working closely together since at least since 2019. They describe their collective process, share their vision, reveal how the family regulation system as a whole, and the Adoption and Safe Families Act (ASFA) in particular, is grounded in and reinforces white supremacy. They call for the abolition of the family regulation system and, crucially, lay down a specific metric by which to evaluate potential steps on the road to abolition.
Before turning to the test for proposed reform, I want to start, as the authors do, not with the problem but with their vision:
We demand a world where the integrity of all families is valued and family ancestry is held sacred. In this world, families are supported and given the resources they need to thrive, and the family death penalty, or termination of parental rights, no longer exists. (P. 869.)
Starting with the vision is important, because visioning challenges us all to “stretch, twist, and wring out all the permutations of possibility and fully embrace the capacity of potential.” (P. 867.) Recognizing that the world may not change tomorrow, though, the authors make clear that, as is the case when talking about abolition and the criminal legal system, particular changes can be either a step toward the goal (a non-reformist or abolitionist reform) or it can be a reformist reform, one that strengthens the very institutional forms that abolition seeks to unroot. To tell the difference in the context of family policing, they offer a four-part test:
- Are the changes that are being proposed reducing funding to the child welfare industrial complex and increasing funds to communities?
- Is the narrative around the policy shift pushing the dominance narrative that the family regulation system is an arbiter of safety?
- Are we supporting changes that decrease the size, power, and scale of the family destruction system?
- Are we supporting a shift in material conditions and the politicization for our people?
(Pp. 891-92.) To see how this might play out in the context of family regulation, the authors focus on ASFA and the destruction of families wrought by that act. Assuming there may be steps towards abolition short of the ultimate goal, they provide examples of what would be an abolitionist v. a reformist reform in this context. On the abolitionist side, they suggest that ending terminations of parental rights (TPR) would be a step toward abolition presumably because it would “decrease the size, power and scale of the family destruction system” and “shift material conditions…for our people.” (P. 892.) In contrast, internal agency reviews of TPR policy fails because it does not reduce funding to the system. (Id.) Instead, it increases it. Moreover, giving the power to conduct reviews to the child welfare agency supports the narrative that the family regulation system is an arbiter of safety and fails to make progress on the goals listed in the last two parts of the test. This all seems straightforward.
Another example though, squarely raises a crucial issue–the ways in which professional interventions that seek to understand a particular person or family’s “problem” and then create a “program” to address that “problem” can be particularly counterproductive. To make this point, the authors highlight the concept of adverse childhood experiences (ACES) and the relationship between ACES and foster care prevention services. There’s no question that putting resources into the hands of agencies associated with the family regulation system to provide prevention services fails the abolitionist reform test. It builds, rather than shrinks, the system and reinforces the narrative that that agency is the arbiter of safety. It also does nothing to directly advance the material or political power of communities most deeply harmed by white supremacy. An advocate for such policy might respond that the concept of ACES and programs genuinely informed by an understanding of ACES have been shown to help particular families. How could this be a problem? To that, the authors have a clear response:
These industries are so faithful to technical surveys like “ACES” that are supposed to address adverse childhood experiences, rather than actually building up Black women and children.They spend more time building out family regulation apparatuses like “prevention models” than advocating for housing, baby bonds, and universal basic incomes for our communities. (P. 894.)
The message to those who would support such an intervention here is clear. If you agree we should move toward their vision, stop diagnosing “problems” and stop “helping” by expanding institutions. Instead, use whatever political power, resources, and/or technical expertise you have to work, in collaboration, toward the transfer of both significant power and significant resources from existing careceral institutions to Black families and communities. The road abolitionists propose is not easy, but I have no doubt it is the only road that will ultimately address the overwhelming violence wrought by carceral systems. We would all do well to heed their words.
Cite as: Wendy Anne Bach,
On Divesting, Investing, and Critically Examining Help: Lessons from a Symposium Centering Abolition, JOTWELL
(September 20, 2022) (reviewing Ashley Albert, Tiheba Bain, Elizabeth Brico, Bishop Maria Dinkins, & Kelis Houston,
Ending the Family Death Penalty and Buildling a World We Deserve, 11
Colum. J. Race & L. 861 (2021)),
https://lex.jotwell.com/on-divesting-investing-and-critically-examining-help-lessons-from-a-symposium-centering-abolition/.
Aug 8, 2022 Eric BiberEnvironmental Law
While climate policy in the U.S. Congress appears stalled, debates about the best approach to advance decarbonization continue at the state level and around the world. A critical choice is between two different philosophies for carbon policy: One option is to pursue some form of pricing on carbon (e.g., cap-and-trade or a carbon tax) and allow the market to advance the best tools to reduce carbon emissions. The other option is to embrace a range of non-market strategies, such as regulation, subsidies, and support for research and development. In making this choice, policymakers must weigh important questions such as the economic cost of a particular policy, whether a policy can even be enacted in the first place, and the effectiveness of a policy in achieving the ultimate goal of reducing carbon emissions.
There have been many electrons spilled in these debates. However, a recent book by two leading scholars in the field—Danny Cullenward, with the climate policy think-tank Carbon Plan and Professor David Victor of UC San Diego—entitled Making Climate Policy Work, provides a thoughtful assessment of this critical tradeoff and comes down on the side of non-market alternatives.
Cullenward and Victor’s critique of carbon markets is both comprehensive and devastating. In their view, carbon markets offer prices for carbon that are too low to meaningfully drive the investment and innovation we need to develop and deploy the technologies required to decarbonize our economies. Additionally, carbon markets are unlikely to produce the high prices needed to drive investment. Setting high prices would require imposing heavy costs on politically powerful incumbent industries and interest groups—all for the benefit of nascent technologies and future generations that are politically weak. Carbon markets cannot provide deep policy integration across multiple economic sectors because each sector’s technological, economic, and political challenges can be so divergent that any market linkage undermines the overall market’s effectiveness. Carbon markets that were touted as ways of integrating climate policy across multiple countries around the world have instead generally failed to sustainably connect across international borders. Moreover, in integrating across jurisdictional borders, markets have all too often relied on approaches such as carbon offsets (in which an emitter pays another actor to reduce their emissions elsewhere) that can be susceptible to fraud and abuse.
Given these flaws, it’s no surprise that the authors characterize most existing carbon markets as “Potemkin” markets that appear to be functioning at reasonable costs–but in fact, most progress in decarbonization (whether it is in reducing carbon emissions or advancing innovation) is driven by regulatory instruments.
Cullenward and Victor’s analysis flows from a relatively simple political model that includes the major actors (such as interest groups) and institutions through which climate policy is established and implemented. To buttress their points, the authors draw on a series of examples, including the European Union’s Emissions Trading System.
The book provides a refreshing counterpoint to the regular invocations of markets as the solution for our climate policy dilemma. Cullenward and Victor have done a remarkable job of summarizing the existing policy literature that has increasingly undermined the case for the dominant role for markets, as well as their own contributions to that literature.
The authors do not call for completely abandoning markets, as they note, markets can be made to work as part of an overall portfolio of climate policy that also includes regulation. For instance, markets can focus on areas where smaller price signals function well. However, the authors make clear that markets will not play the leading role for much of our climate policy in the near future. Given the urgency of the task in front of us for decarbonization, knowing which policies are more effective in the here and now is tremendously important.
Jul 22, 2022 Caprice RobertsRemedies
Ignacio Cofone,
Privacy Standing, 2022
U. Ill. L. Rev. __ (forthcoming 2022),
available at SSRN.
Data breaches abound, but not every breach results in a cognizable claim. Which violations should constitute actionable injuries? What injury allegations satisfy standing requirements in federal courts? How should courts articulate sufficient cognizable injuries to warrant relief? Professor Ignacio Cofone, in a forthcoming article titled Privacy Standing, offers a framework for answering these questions and guiding courts to more consistent opinions for similarly situated victims.
Standing challenges confound courts resulting in inconsistent rulings. As Cofone notes, “No standing means unenforced rights.” Identifying privacy harms, however, is difficult. The primary obstacle lies in assessing privacy harms, for which Cofone proposes a conceptual solution. Cofone first notes the doctrinal woes of the courts. Courts tend to conflate the issue of privacy loss with Article III standing analysis. The Supreme Court, in Spokeo v. Robins, clarified that plaintiffs seeking relief for privacy injury must pose a cognizable real-world harm. The Court emphasized that the harm must be concrete, but did not further guide lower courts in rendering this assessment. Some circuits find standing doctrines satisfied based on a violation of a statutory privacy right, while other courts find standing not met unless plaintiff shows an additional kind. Examples of additional harm are financial harm or reputational harm. Cofone asserts that both approaches have flaws and should be replaced by a three-step framework that considers the fact-dependent nature of privacy injuries.
With useful illustrations from Urban Outfitters to real-world controversies like Grindr, Cofone guides readers through the proposed framework. First, a judge must identify the loss of privacy. Next, the judge should identify the privacy harm, and last, the judge should determine when the harm rises to an actionable privacy injury. Cofone suggests that the second step of whether a privacy loss constitutes a privacy harm is to examine any intrusion on normative values. For example, the jurist must ask whether the privacy loss violated normative privacy values such as the right to be let alone, autonomy, secrecy, control over personal information, protection of one’s dignity, and intimacy. For the final step, the judge must determine whether the privacy harm is actionable based on judicial precedent and the existence or nonexistence of statutes granting standing. Cofone asserts that the synthesis of both equates to applying a reasonable person standard.
The core problem, and Cofone’s solution, matter because of increased collection of personal information and data breaches. The increased risk and occurrence of privacy loss necessitate clearly defined standards by which parties may seek remedies for violations of common law and statutory privacy rights. Still courts must engage in proper line-drawing to determine which claims are actionable. Implementing Cofone’s solution will enable courts to hear and redress meritorious claims of privacy violations without opening the door to unfounded or incognizable claims.
Cofone’s framework is purposefully narrow to alleviate the concern that finding standing for every privacy injury case would open the floodgates to all kinds of privacy complaints. By judiciously excluding cases in which no privacy loss occurred, or the loss of privacy was not a privacy harm, or the harms are reasonable under the circumstances, courts will be free to recognize some injuries as constituting standing while avoiding the slippery slope of recognizing any privacy loss as an actionable claim. The shift to a nuanced conception of privacy loss and privacy injury—rather than a binary notion—is a central theme of Cofone’s project.
To conceptualize the harms inherent to mass data collection, aggregation, and potential data breaches, Cofone introduces the idea of a probabilistic privacy injury. To illustrate the point, the Article uses a graph to show two normal distribution curves: one relatively flat and wide representing an individual in low danger of suffering a privacy injury, another steep and narrow in grave danger of suffering a privacy injury. This illustration includes Bayesian statistical analysis, and Cofone helpfully explains the graph and its underlying bases.
Cofone likens privacy harms to environmental torts, which Cofone argues, suffer from similar problems of temporal and evidentiary separation of cause and effect. The comparison provides a lens through which Cofone advocates for establishing enhanced legal protections of statutory privacy rights. Cofone explores the common law recognition of probabilistic standing as a useful model. According to Cofone’s contention, recognizing probabilistic privacy injuries the same way the law recognizes diffuse environmental harms would overcome challenges that probabilistic privacy injuries are too general to meet standing doctrine’s particularized harm requirement.
This article demonstrates that privacy injuries should be independently assessed. Courts should not require an additional showing of another kind of harm (like financial or reputational harm) because doing so misses the point of privacy rights. The normative values of privacy, Cofone explains, are what Congress sought to protect when it created statutory rights of privacy. Citing Justice Thomas’s dissent in TransUnion v. Ramirez, Cofone argues that Courts should defer to Congress’s power to create and define rights.
With Privacy Standing, Cofone renders valuable contributions to collective legal knowledge. Namely, Cofone creates opportunity for scholarly and judicial advancement from the article’s conceptualization of privacy harm as a probabilistic injury, its three-step framework for identifying actionable privacy injuries, and its synthesis of the misguided rationale underlying the circuit split on standing doctrine pertaining to privacy injuries. Overall, Cofone’s work will inure to the benefit of federal court standing doctrines. It also will ensure that those with proven violations of privacy rights do not go without a remedy. With luck, Cofone’s work will foster further scholarship developing privacy law and refining judicial treatment of similar difficult-to-prove injuries.
Jul 8, 2022 Juliet StumpfImmigration
In immigration law, where the apex penalty is deportation, proportionality is absent. We tend to think of proportionality in punishment as requiring that the severity of a penalty track the severity of the offense, minus mitigating circumstances. The coin of the realm in immigration law is immigration status, so mitigating circumstances would in theory focus on the noncitizen’s particular qualities, such as length of residence in and ties to the United States. In Immigration Law’s Arbitrariness Problem, published in the Columbia Law Review, Shalini Bhargava Ray argues for sanctions better tailored to these considerations.
I like this article (lots) because for one thing, it challenges my own scholarship advocating for proportionality in immigration law and centralizing deportation as the sole immigration penalty. (I’m not alone. Angela Banks, Mike Wishnie, Maureen Sweeney, and Jason Cade (and others) have also proposed proportionality in deportation, and they’re no slouches). The article’s first contribution is to challenge the notion that proportionality is a fix for deportation’s ills. Proportionality proponents tend to point to the criminal justice system’s employment of proportionality in sentencing but, as Bhargava Ray observes, criminal law is replete with “overpunishment and overcriminalization” and so not a model of proportionality as path to justice. Besides, courts tend to hate the proportionality argument, which is why it tends to fail.
Second, Bhargava Ray challenges the scholarly obsession with deportation, pointing out that immigration agencies’ implementation of the Immigration and Nationality Act “involves a spectrum of penalties short of deportation” that create a “shadow system” of sanctions. She’s right, although we don’t tend to think about it that way. She explains that the immigration bureaucracy uses discretionary tools of lenience when deportation looms. These tools include enforcement priorities, deferred action, administrative closure, and post-order forbearance, and they are doled out by agency officials on an ad hoc basis. This “shadow system” means that immigrants, their advocates, and the public have no idea when these leniency tools, dubbed “shadow sanctions” are imposed in lieu of deportation and why. It’s not that the government gives no good reason for when it applies or withholds lenience. It’s that it gives no reason. At all.
That’s a blueprint for arbitrary government action. Bhargava Ray proposes that the government must satisfy the fundamental norm requiring a sufficient justification for a particular penalty. She suggests that we rummage in the toolbox of the bureaucratic apparatus of immigration law itself to find the “informal, discretionary tools” that agencies use to avoid deportation and impose “shadow sanctions.” How does one go about shining a light on shadow sanctions? By drilling down into administrative law doctrines and concepts such as notice-and-comment rulemaking, interpretive guidance and centralized discretion, and procedural innovation to render these shadow sanctions more available, open, and consistent. Shining a light on shadow sanctions will promote “reasoned immigration administration.” Then we can lay the foundation for a reason-giving infrastructure in immigration law.
Hand me that hammer.
Editor’s Note: for an earlier review, see Mila Sohoni, Immigration Law’s “Shadow Dockets”, JOTWELL (November 29, 2021).
Jun 3, 2022 Kristina NiedringhausLibrarianship and Legal Technology
Law students and attorneys often wonder if it matters whether they use United States Code Service (USCS), a Matthew Bender publication also available on Lexis+, or United States Code Annotated (USCA), a Thomson Reuters publication also available on Westlaw Edge. In 1L legal research classes, I often field the question about what the differences are between the publications. “They are both the US Code, right?” is a common refrain. The traditional lore, passed on to law students, was that USCA strove to provide an annotation for every relevant case while USCS strove to provide annotations to the “best” cases. Accordingly, USCA was said to contain a greater number of annotations and USCS was more selective. I recall being taught this in law school. However, like much folklore, the foundations for this assertion are becoming lost with time and it is unclear whether this represents the current state of the two annotated codes. The product page for the print edition of USCA states that the set has “comprehensive case annotations.” Similarly, the product page for the print version of the USCS states that it is “the most comprehensive” set. We are left to determine for ourselves the meaning of “comprehensive.” We will talk more about this later, but it is important to note that USCS case annotations include administrative decisions while USCA case annotations do not.
Ms. Marcum’s research explores whether there is a significant difference between the annotations found in USCA and USCS. Does it matter which annotated code the researcher uses? Should a thorough researcher use both? Most people would expect some unique case annotations in each annotated code with a fair amount of overlap between the two sets. The surprising results were that out of 9164 case annotations for 23 statutes, 6748 of the annotations were unique to either USCS or USCA. Of the 9164 case annotations, 73.6% of them were unique and only listed in one of the annotated codes. Most researchers will be shocked by the small amount of overlap between the two publications. One could anticipate that this percentage would be statistically significant, and Ms. Marcum confirms this is true using a Wilcoxon T test.
Going deeper into the numbers, of the 6748 unique case annotations, 3852 were unique to USCA and 2896 were unique to USCS. Of the case annotations in USCA 76% were unique while 70.5% of the case annotations in USCS were unique. Back to those administrative decisions that are included in USCS but not in USCA. Those administrative decisions have been included in the data. Ms. Marcum explains her research methodology in detail and included the administrative decisions in the data “because they are publisher-neutral, government information that both codes could have included if they so desired.” (P. 210.)
Why does this matter? It is an additional data point available to help a researcher decide whether to use USCA, USCS, or both. It also adds to the information available to information professionals making decisions about whether to purchase one, or both, of the annotated codes. Neither the print sets, nor their related electronic research systems are inexpensive. There is a strikingly limited amount of empirical research, either quantitative or qualitative, studying legal research tools. Ms. Marcum’s research is an important addition to the knowledge we have about the tools lawyers, law students, and law librarians use every day. For example, there are only two other comparisons of case annotations available. A Comparison of Case Law Results between Bloomberg Law’s ‘Smart Code’ Automated Annotated Statutes and Traditional Curated Annotated Codes, is an unpublished draft paper by Jason Zarin from 2017 available at SSRN (Social Science Research Network), https://ssrn.com/abstract=2998805 or http://dx.doi.org/10.2139/ssrn.2998805. The other is four decades old, Jeanne Benioff, A Comparison of Annotated U.S. Codes, 2 Legal Reference Services Q. 37 (1982). In fact, very few comparisons of any aspects of major legal research products exists. Some notable exceptions are works by Susan Nevelow Mart such as The Algorithm as a Human Artifact: Implications for Legal [Re]Search, The Case for Curation: The Relevance of Digest and Citator Results in Westlaw and Lexis, and The Relevance of Results Generated by Human Indexing and Computer Algorightms: A Study of West’s Headnotes and Key Numbers and Lexis’s Headnotes and Topics (102 Law Libr. J. 221 (2010)). Also of note is research by Paul Hellyer, Evaluating Shepard’s, KeyCite, and BCite for Case Validation Accuracy which I reviewed on Jotwell. Given the cost of major legal research databases, more evaluative comparisons of their features and tools would be beneficial to the legal profession.
Research like Ms. Marcum’s provides support for evidence-based decision making by researchers and information professionals when making decisions about what resources to purchase and use. It is imperative that more scholars undertake empirical research analyzing and comparing legal research tools relied upon by the legal profession.
May 6, 2022 Brian FarkasArbitration
It’s already cliché, but worth saying anyway: The pandemic has shaken the entire legal industry. Much has been written about how the “new normal” has upended court systems, client advocacy, lawyer training, and so much more. From senior partners managing their firms virtually, to nervous 1Ls taking their introductory courses over Zoom, no corner of our tradition-bound profession has been spared from disruption.
But one slice of the industry was better prepared than most. In her comprehensive article in the Cardozo Journal of Conflict Resolution, Arbitration in the Age of COVID, Professor Amy J. Schmitz describes how private dispute resolution has met this moment. She also identifies important unresolved issues that scholars and practitioners must address as the legal world adapts to virtual adjudication.
Generally, alternative dispute resolution (“ADR”) broadly encompasses out-of-court methods for resolving conflict, such as arbitration and mediation. ADR has long prided itself on flexibility and innovation. Various forms of online dispute resolution (“ODR”) have existed for decades. Examples include chat rooms with facilitated negotiations, video-based mediations, and arbitrations conducted through electronic document submissions.
Yet until 2020, most commercial arbitrations and mediations still occurred the old-fashioned way, in physical conference rooms. But the pandemic made that impossible. No longer could witnesses travel to far-flung hearings, and no longer could groups gather in tiny rooms. Meanwhile, civil trial calendars became hopelessly backlogged. Disputants needed ways to efficiently and safely resolve their claims. The result? ODR suddenly became mainstream.
Professor Schmitz starts by tracing the development of American arbitration law. Arbitration’s modern legal foundations begin with the Federal Arbitration Act (“FAA”) of 1925. Under the FAA, agreements to arbitrate are “valid, irrevocable, and enforceable” and courts will consistently enforce arbitral awards. The twentieth century saw a dramatic expansion of arbitration agreements in business-to-to-business contracts and—more controversially—in employment and consumer contracts. The U.S. Supreme Court’s decisions over the past two decades have almost invariably bolstered arbitration’s enforceability.
The article next examines the surprisingly long history of ODR. With the rise of the Internet, many companies experimented with ways of efficiently resolving inevitable consumer disputes. In 1998, eBay and PayPal launched mediation software that assisted buyers and sellers in reaching compromise. Modria, a popular spin-off of that platform, expanded into broader types of ODR, including binding arbitration where parties would submit their respective positions in writing and receive a written award from a neutral arbitrator. Since then, numerous ODR platforms have arisen, such as FairClaims, FORUM, and Arbitration Resolution Services. Under the FAA, awards rendered after online proceedings are no less binding than awards rendered after physical ones.
The institutionalization of ODR, Professor Schmitz notes, began long before the pandemic. Major ADR providers like the American Arbitration Association (“AAA”), the International Institute for Conflict Prevention & Resolution (“CPR”), and JAMS have ample experience conducting virtual hearings. These providers invested in “smart” conference rooms with all the audiovisual bells and whistles, internal protocols for hearings, and training for their arbitrators.
Then came COVID-19. State and federal court systems—laboring under thick bureaucracy, tight budgets, and limited technology—struggled to pivot their operations to virtual. Meanwhile, private ADR stood ready. Many parties moved their already-scheduled arbitrations online, and many who otherwise would have filed claims in court realized that online arbitration could provide faster adjudication. “As more arbitrations move online,” Professor Schmitz observes, “parties and arbitrators are learning firsthand what many of us in ODR have been saying for some time: [online arbitration] provide[s] efficiency, convenience, and room for innovation.” Online arbitrations can save time and cost for litigants, all while keeping everyone safe.
Not surprisingly, such rapid transformation is not without its challenges. There are obvious concerns about information security, for example. Professor Schmitz also considers a series of more novel questions raised by the explosion of online arbitration. A few examples:
- What happens if one party wants to move forward with online arbitration, but the other wants to wait for in-person hearings? Arbitrators derive their powers from parties’ contracts, but most arbitration agreements were written before the pandemic. Can an arbitrator force the reluctant party to arbitrate online?
- What about discovery from third-parties? Section 7 of the FAA empowers arbitrators to “summon in writing any person to attend before them” in a hearing to provide documents or testimony. Can arbitrators therefore order a third-party to attend a Zoom?
- Finally, what is lost in virtual hearings? Professor Schmitz is bullish on ODR, but she’s not naïve on its potential drawbacks. Can arbitrators assess witnesses’ credibility? Could witnesses be improperly “coached” off-camera during their testimony? Do parties lose meaningful opportunities for settlement discussions during lunch breaks, when lawyers might normally have informal conversations?
Some of these assorted issues received moderate scholarly attention before the pandemic, but now require more sustained analysis. Professor Schmitz herself is already hard at work. Indeed, this article is hardly her only recent contribution to our understanding of online arbitration. In the past two years—beyond a steady stream of publications—she’s conducted a breathtaking 100 video interviews with arbitrators, advocates, and scholars entitled “The Arbitration Conversation.” These conversations shed tremendous light onto the field’s virtual transformation. No scholar has better catalogued the pandemic’s effects on private dispute resolution. (Some people have been almost frighteningly productive these past couple years. Taylor Swift released four studio albums; Lin-Manuel Miranda produced four movies and composed the soundtracks of three more; and then we have Professor Schmitz.)
As the legal profession lurches towards an increasingly virtual future, online arbitration’s fate rests on ensuring that the process is efficient, fair, and reliable. This article shows that while ADR was hardly caught flat-footed by the pandemic, much work remains.
Cite as: Brian Farkas,
Zoom Arbitration, JOTWELL
(May 6, 2022) (reviewing Amy J. Schmitz,
Arbitration in the Age of COVID: Examining Arbitration’s Move Online, 22
Cardozo J. Conflict Resol. 245 (2021)),
https://lex.jotwell.com/zoom-arbitration/.
Apr 1, 2022 Anita KrishnakumarLegislation
In Legal Corpus Linguistics and the Half-Empirical Attitude, Professor Anya Bernstein provides an illuminating and forceful critique of the claim that corpus linguistics—the study of patterns of language usage across a wide array of English-language sources—should be used to “empirically” derive the ordinary meaning of words used in legal texts. Corpus linguistics has been a hot topic in statutory and constitutional interpretation for the past several years, as a growing number of judges, scholars, litigants, and amicus curiae have pressed for its use in cases that turn on the meaning of a legal term or phrase. Perhaps most notably, in an article titled Judging Ordinary Meaning Utah Supreme Court Associate Chief Justice Thomas R. Lee and his former law clerk Stephen Mouritsen have argued that the concept of “ordinary meaning” implicates empirical questions that the field of corpus linguistics is well-designed to answer—and have urged courts to “import [corpus linguistics] methods into the modern theory and practice of interpretation.”
Professor Bernstein’s thoughtful article astutely identifies several serious flaws with such an interpretive move, calling into question the push to use corpus linguistics to determine statutory or constitutional meaning and the effort to use corpus linguistics to add an empirical dimension to the search for ordinary meaning. Her central critique is that the use of corpus linguistics to determine the meaning of legal texts mismatches methods and goals. She contends, for example, that while corpus linguistics in linguistics makes an empirical claim to illuminate truths about how language in the corpus is used, the use of corpus linguistics in legal interpretation misuses empirical methods to make a normative claim—i.e., that the usage patterns identified through corpus analysis ought to influence the interpretation of legal texts. Bernstein labels this attempt to treat normative claims as empirical a “half-empirical” attitude. And she meticulously questions the assumptions underlying that claim.
First, Bernstein explains that legal corpus linguistics focuses on different data—the frequency and collocation of words in the corpus—than the larger-scale search for hidden but pervasive patterns in language structure that characterize corpus linguistics research’s “most exciting findings.” (She explains, for example, the linguistic concepts of syntagm and paradigm, which focus on what is communicated by what is left out of a linguistic phrase—e.g., the unused option when we say “I like ice cream” rather than that we “love” ice cream or that “Isaiah” likes ice cream; whereas corpus linguistics in linguistics cares about such omissions, corpus linguistics in service of identifying ordinary meaning ignores such subtleties.)
Second, Bernstein questions the actual database of English-language usage—i.e., the corpus itself—that legal interpreters have tended to use (and have advocated using) to determine statutory and constitutional meaning. Specifically, she notes that COCA (the Corpus of Contemporary American English), which collects language used in “fiction, popular magazines, newspapers, academic texts” as well as TV and radio programs, has been touted as reflecting ordinary, naturally occurring conversational usage—but in reality reflects professionally planned, edited writing or broadcast performances that differ markedly from unscripted everyday speech. Moreover, Bernstein points out, an emphasis on the COCA ignores the genre that is arguably most relevant to legal language—i.e., the language of legislators; thus proponents of corpus linguistics might be better served by advocating the use of a corpus based on the congressional record, C-SPAN recordings, and committee reports, in lieu of one based on talk shows and the like.
Relatedly, Bernstein argues that the use of corpus linguistics in legal interpretation completely ignores legal context. Using specific case examples, she deftly shows that courts sometimes use corpus linguistics to ask the wrong questions—e.g., what a particular word in a statutory phrase means in everyday conversation rather than whether precedent dictates that the entire phrase has a specific legal meaning. Worse yet, she argues that courts sometimes use corpus linguistics to obscure legal judgment calls or to provide a false air of scientific certainty or neutral objectivity to their decisions. In this sense, the judicial use of corpus linguistics falls prey to some of the same problems as the judicial use of the canons of construction and other supposedly neutral interpretive tools, as I and others have written about elsewhere.
Bernstein ends by offering some suggestions for how legal scholars and practitioners might use corpus analysis, not to determine how legal terms appear in non-legal language sources, but to determine how legal language is typically structured and how it compares to the language of other genres.
Ultimately, Professor Bernstein’s article is remarkably insightful and valuable—both for its careful explanation of how corpus linguistics in linguistics works and for its detailed analysis of the limitations of various specific corpora, as well as its insights on where judicial use of corpus linguistics has gone wrong. The article is a must-read for anyone who wishes to understand what exactly corpus linguistics is—and its limitations as a tool of legal interpretation.
