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When the Price Isn’t Right: Why Markets Aren’t the Panacea for Climate

Danny Cullenward & David G. Victor, Making Climate Policy Work (2020).

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.

Cite as: Eric Biber, When the Price Isn’t Right: Why Markets Aren’t the Panacea for Climate, JOTWELL (August 8, 2022) (reviewing Danny Cullenward & David G. Victor, Making Climate Policy Work (2020)), https://lex.jotwell.com/when-the-price-isnt-right-why-markets-arent-the-panacea-for-climate/.

Conceptions of Privacy Shouldn’t Stand in the Way of Privacy Standing

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.

Cite as: Caprice Roberts, Conceptions of Privacy Shouldn’t Stand in the Way of Privacy Standing, JOTWELL (July 22, 2022) (reviewing Ignacio Cofone, Privacy Standing, 2022 U. Ill. L. Rev. __ (forthcoming 2022), available at SSRN), https://lex.jotwell.com/conceptions-of-privacy-shouldnt-stand-in-the-way-of-privacy-standing/.

Shining a Light on Shadow Sanctions

Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021).

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).

Cite as: Juliet Stumpf, Shining a Light on Shadow Sanctions, JOTWELL (July 8, 2022) (reviewing Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021)), https://lex.jotwell.com/shining-a-light-on-shadow-sanctions/.

Checking Annotations in both USCS and USCA: Necessary or Redundant?

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.

Cite as: Kristina Niedringhaus, Checking Annotations in both USCS and USCA: Necessary or Redundant?, JOTWELL (June 3, 2022) (reviewing Emily Marcum, Comparing the United States Code Annotated and the United States Code Service Using Inferential Statistics: Are Their Annotations Equal? 113 Law Lib. J. 207 (2021)), https://lex.jotwell.com/checking-annotations-in-both-uscs-and-usca-necessary-or-redundant/.

Zoom Arbitration

Amy J. Schmitz, Arbitration in the Age of COVID: Examining Arbitration’s Move Online, 22 Cardozo J. Conflict Resol. 245 (2021).

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/.

On the Perils of Using Corpus Linguistics to Interpret Statutes

Anya Bernstein, Legal Corpus Linguistics and the Half-Empirical Attitude, 106 Cornell L. Rev. 1397 (2021).

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.1

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.

  1. See, e.g., Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275 (2020); James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 548 (2013) (arguing that the Court sometimes employs dictionary definitions to “lend[] a patina of objectivity and legitimacy” to its statutory constructions).
Cite as: Anita Krishnakumar, On the Perils of Using Corpus Linguistics to Interpret Statutes, JOTWELL (April 1, 2022) (reviewing Anya Bernstein, Legal Corpus Linguistics and the Half-Empirical Attitude, 106 Cornell L. Rev. 1397 (2021)), https://lex.jotwell.com/on-the-perils-of-using-corpus-linguistics-to-interpret-statutes/.

Why Don’t Policymakers Speak Out About Migrants?

Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021 Wis. L. Rev. 473 (2021), available at SSRN.

Ava Ayers asks us to think about a hypothetical policy that says, “We must protect our children from violent crime because children are key drivers of economic well-being.” Professor Ayers aptly describes this language as “creepy.” Why, then, do politicians often discuss immigration by emphasizing what migrants can do for us, rather than in terms that recognize the agency, rights, and intrinsic value of individual migrants? While the effects of immigration are a legitimate concern, the rhetoric of politicians often leans on a transactional approach to immigration, rather than one based on moral grounds. While the reluctance to highlight what is best for migrants may be understandable given political calculations, Professor Ayers pushes us to think about what is lost by ignoring opportunities to say that undocumented individuals matter, that they are a part of the community, and that they are worthy of the concern of public leaders. Professor Ayers’ approach focuses on the way that policy reflects “attitudes about the value of human beings.” The law is about more than just consequences.

In Missing Immigrants in the Rhetoric of Sanctuary, Professor Ayers examines the rhetoric used by local and state policymakers when crafting sanctuary policies. While “sanctuary” has no strict definition, it generally refers to policies that resist immigration enforcement or policies that withhold state and local cooperation with immigration enforcement. Some sanctuary policies involve active resistance, while others are more passive. All sanctuary policies are meant to protect individual noncitizens. But, as Professor Ayers has found, the justifications for sanctuary policies are at times expressed in language that emphasizes what sanctuary policies can achieve for those who are not at risk of deportation. In other words, policymakers, at times, do not make those who will benefit from a sanctuary policy the center of their rhetoric.

The rhetoric surrounding sanctuary policies is especially worthy of examination because these policies represent strong objections to federal enforcement of immigration law. As Professor Ayers observes, if policymakers in favor of sanctuary policies shy away from openly discussing the interests of noncitizens, who will? Professor Ayers is focused not on the end result- the sanctuary policy- but the rhetoric used to get there. While focusing on the benefits to voters may seem like a pragmatic approach, Professor Ayers argues that politicians should embrace their influence to help change the moral norms surrounding migration.

Professor Ayers shows us examples of rhetoric where arguments about public safety, economic well-being, and family unity are not focused on the needs or rights of the migrants themselves, but rather what sanctuary policies can do for us. The “us” signifies a division in the community and that those who directly benefit from sanctuary policies are somehow either not a part of the community or are not full members. Many individuals seeking sanctuary have lived in the United States for years and live in mixed-status families. Professor Ayers’ article raises important questions about whose well-being counts and who is included in community identity

Professor Ayers recognizes a danger of ignoring moral standing and by defining undocumented individuals as “other.” By focusing on transactional value, policies “tend to instrumentalize undocumented people.” Undocumented individuals are more than a means to an end. Also, “if a certain group of people is routinely treated as instrumental, and never treated as an end in themselves, then that group has been dehumanized.” Instrumentalization risks “reinforcing the idea that undocumented people’s interests do not deserve to be considered by policymakers or by anyone else.”

It is not clear whether policymakers use the transactional rhetoric because it is their preferred language or whether they use this rhetoric as a part of a political calculation to make sanctuary policies more acceptable to voters. The rhetoric of the policymakers, Professor Ayers argues, can be contrasted with the rhetoric of activists, which focuses on the needs of migrants and considers even undocumented individuals to be community members.

Professor Ayers’ observations about rhetoric in the sanctuary context have significance in other aspects of immigration law as well. Politicians make arguments in favor of legalization programs by emphasizing what those programs can do for us. This rhetoric emphasizes a transactional approach to immigration; an approach that at its core, whether or not intentionally, sends the message that migrants are only worthwhile if they do something for us. Professor Ayers is pushing us to think about why arguments about benefits to the migrants themselves are taboo and to recognize “what is lost through this shying away.”

Thinking about why policymakers do not focus on arguments about benefits to migrants themselves is important because, as Professor Ayers says, “rhetoric shapes norms that determine our society’s willingness to welcome noncitizens and decisions about how we treat them.” It is as if policymakers are restraining themselves, perhaps because of some conventional wisdom about what the American electorate will accept. This restraint is detrimental, according to Professor Ayers.

Professor Ayers acknowledges that some in her study did ignore the conventional wisdom and spoke about how sanctuary policies benefit migrants themselves. Arguments about benefits to the rest of society are not illegitimate, but Professor Ayers’ inquiry shows us that the missing rhetoric is worthy of examination. One aspect of Professor Ayers’ inquiry that could be further developed is her collection of sanctuary policies. Professor Ayers mentions that she reviewed 200 sanctuary policies in her research but does not give us further detail on how many of those policies use inclusive rhetoric versus how many do not.

Nevertheless, Professor Ayers astutely points out that as long as some policymakers are using this rhetoric, we need to stop and think about it. Why would policymakers shy away? How can we change the rhetoric in the hope of recognizing migrants for their intrinsic value? As Professor Ayers argues, changing the rhetoric holds promise for changing the norms that govern our national conversations on immigration.

Cite as: Jill Family, Why Don’t Policymakers Speak Out About Migrants?, JOTWELL (February 23, 2022) (reviewing Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021 Wis. L. Rev. 473 (2021), available at SSRN), https://lex.jotwell.com/why-dont-policymakers-speak-out-about-migrants/.

Federal Indian Law is Racist

From land theft to child removal to cultural genocide, the horrors and harms of federal Indian law have been well-documented. In his recent article, Professor Crepelle acknowledges this history and literature and asks: “Is it ethical to cite cases that are factually wrong and racist?” (P. 533.) He concludes that federal Indian law practice is “incompatible with modern standards of legal ethics.” (P. 532.) I couldn’t agree more.

Professor Crepelle identifies cases that rely on racial slurs, inaccurate stereotypes, and white supremacist language to reach legal conclusions that undermine Tribal jurisdiction or Indigenous rights. These cases—the Marshall trilogy, US v. Rogers, Ex Parte Crow Dog, US v. Kagama, among others—are regularly relied upon in modern federal Indian law practice.

Professor Crepelle analyzes how the Model Rules of Professional Conduct (MRPC) could be applied to lawyers who cite racist federal Indian law cases or judges who rely on them. For example, the MRPC requires claims to be based in law and fact (r. 3.1); prohibits the use of false statements or inaccurate information (r. 3.3, r. 4.1, r. 8.4(c)); and bars conduct that discriminates based on race, sex, or national origin (r. 8.4(d)).

These ethical rules, Professor Crepelle explains, were not applicable to the attorneys and judges when they participated in the cases discussed above. But they do apply to the lawyers that rely on them today. (P. 541.) He argues that when these cases are cited in modern practice (and they are a lot, Professor Crepelle counted!), attorneys and judges are obligated to acknowledge the faulty reasoning and white supremacy ideology that supported the decisions when relied upon today. He states “Presumably, few lawyers in the contemporary United States would dare to openly argue [T]ribal sovereignty needs to be curtailed because Indians are racially inferior to whites . . . unapologetically racist reasoning should render them impermissible under the ABA’s MRPC.” (P. 568.) I wish it were so. And, I wish case law was the only problem.

There are many racist statutes and regulations on the books today that are also products of white supremacy (looking at you, Major Crimes Act and Tribal recognition regulations). The modern-day practice of federal Indian law also includes lawyers and judges that routinely question the existence, capability, and cultures of Tribal nations. The Goldwater Institute, a nonprofit organization that has taken a leading role in the challenging the Indian Child Welfare Act in state and federal courts, relies on arguments that Tribes should not be treated as distinct political groups.

In his book, In the Courts of the Conqueror, Judge Walter R. Echo Hawk reminds us that “Only rarely in US history has the law served as a shield to protect Native Americans from abuse and to further their aspirations as [I]ndigenous peoples.” (P. 4.) Therein lies the rub. Most of federal Indian law is racist. What is left if we take out all the racist bits?

Fortunately, brilliant Tribal advocates, attorneys, and scholars have considered various options for reform. Echo-Hawk, in the final chapter of In the Courts of the Conqueror, offers a framework for “reforming the dark side of federal Indian law” which includes reforming federal law to meet the thresholds established by the United Nations Declarations on the Rights of Indigenous Peoples; overturning decisions like Johnson v. M’Intosh; and protecting Indigenous habitat. Professor Angelique Townsend EagleWomen has suggested a return to treaty-making between Tribes and the United States could bring more balance to Tribal authority in federal Indian law.

Through his article, Professor Crepelle adds rules of professional responsibility as another tool to use to chip away the racist foundations and practice of federal Indian law. It is a welcome one. We need all the tools we can get.

Cite as: Aila Hoss, Federal Indian Law is Racist, JOTWELL (January 24, 2022) (reviewing Adam Crepelle, Lies, Damn Lies, And Federal Indian Law: The Ethics of Citing Racist Precedent in Contemporary Federal Indian Law, 44 N.Y.U. Rev. of L. & Soc. Change 529 (2021)), https://lex.jotwell.com/federal-indian-law-is-racist/.

Taking Law’s “v.” Out of Environmental Policy Science (Again)

When Bernard Goldstein speaks about the intersection of science and law in environmental policy, people listen. Or at least they should, in light of Dr. Goldstein’s distinguished record of scholarship, public service, and advocacy at this nexus. He is now in his sixth decade of writing about protecting public health from a vast array of toxic exposures. His latest contribution to that discussion is well worth reading and reflecting upon.

Readers should not be deterred by the article’s unwieldy title, nor by the prominent mention of a well-known person who skipped Joe Biden’s inauguration. Goldstein’s article is much more than a shooting-fish-in-a-barrel critique of an expired Administration. As Goldstein points out, a future similar assault on the scientific basis for environmental policy “is far from impossible,” and “not . . . from just one side of the political spectrum.” (P. 339.) So, rather than focusing on ideological differences and policy preferences, Goldstein attempts to explain the essential nature of such attacks and to suggest potential defenses.

Goldstein’s thesis is that the “replacement of EPA’s scientific consensus processes with those most appropriate to the law” was behind the harm that former Administrators Scott Pruitt and Andrew Wheeler did to EPA policymaking. This thought might rankle law professors, who certainly acknowledge that science provides the factual basis for environmental policy but nevertheless customarily emphasize that lawyers’ skills are essential to formulating, defending, and enforcing environmental regulations. But Goldstein does not question or denigrate the value of lawyers and legal analysis to policymaking. Rather, he argues that the first step in making environmental policy – selecting and evaluating the science to be used in the process – is served better by the norms and modes of science than by those of law.

Goldstein begins with a brief description of “pertinent distinguishing characteristics between law and science.” (P. 303.) Many judges and academics have attempted this over the last fifty or so years; Goldstein claims no novelty here. He emphasizes the contrast between advocacy and discovery as the prime motivators of lawyers and scientists, respectively. The point is well taken, though the article gives too little credit to the professional imperatives and cognitive biases that can push scientists toward advocacy, as well as to the need for credibility that can sometimes push lawyers toward truth-telling. But Goldstein qualifies his somewhat over-stark presentation, noting that “these are central tendencies rather than absolute rules.” (P. 304 n.12.) And his deep understanding of these tendencies, as a scientist who has worked on many legal and policy issues, provides insights far more useful than the platitudes that often appear in court opinions and even in some scholarly writing.

What Goldstein calls “advocacy” reflects, more than anything, the adversarial nature of the American judicial system, with the central “v.” of a case caption constructing a sharp pivot between opposing world views. Goldstein contends that on regulatory science issues, an adversarial structure – whether in a court of law or the court of public opinion – predictably generates a conceptual model of scientific opinion as bimodal, with views clustered around incompatible extremes. The typical scientific reality, he says, is different: if sufficient data exist, scientific opinion on any particular issue is likely to be normally distributed, strongly clustered around some central value that represents a consensus view.

Unsurprisingly, Goldstein the scientist believes that the goal of environmental policymaking should be to discover that scientific consensus and then to choose a regulatory standard reflecting the consensus as nearly as possible. He laments the last Administration’s displacement of this goal, achieved through a series of procedural changes, many glaringly obvious but some quite inconspicuous. The cumulative impact, Goldstein concludes, turned a process that used to be a search for scientific consensus into an attempt to justify a preferred outcome – that is, into advocacy. Goldstein’s disagreement with the outcome preferences is incidental to his concern about the procedural transformation itself.

Goldstein illustrates the depth of the transformation by describing numerous methods for seeking to determine a scientific consensus, none of which bears any resemblance to the decision-making processes of the departed Administration. He also discusses how the scientific research function fits into EPA’s organizational structure and why the appropriate procedures for assessing scientific evidence may vary with the regulatory context. Goldstein’s vast experience – which includes a stint heading EPA’s Office of Research and Development – enriches this discussion. For example, Goldstein provides a compelling scientific rationale, rather than a policy argument, for why data transparency rules appropriate for new drug approval by the FDA are not appropriate for environmental regulation by the EPA.

For legal scholars who would build on this work, Goldstein’s discussions of how scientists assemble and evaluate evidence, and how they choose their methods for doing so, are among the most intriguing passages in the article. Some, though not all, of the consensus-finding methods Goldstein explores have been adopted by governments or by non-governmental agencies. Within government, different structural choices have been made in the establishment of different agencies, each with its strengths and weaknesses. Determining which methods and structures will be most robust against future attacks is an urgent mission.

Twenty-five years ago Dan Tarlock argued “that environmental law and management should derive their primary political power and legitimacy from science, not ethics.”1 The past four years showed us both the power and limits of Tarlock’s claim. Ethics, we have seen, are insufficient to ensure good or even rational environmental policy: they are subject to too much disagreement, and they do not seem to constrain some policymakers at all. But science, we have seen, is also insufficient to ensure good or even rational environmental policy: it is too easily honored in word but not in deed. Bernard Goldstein’s exploration of how this happened sets up the challenge of figuring out how we can keep it from happening again.

  1. A. Dan Tarlock, Environmental Law: Ethics or Science?, 7 Duke Envtl. L. & Pol’y Forum 193, 194 (1996).
Cite as: Steve Gold, Taking Law’s “v.” Out of Environmental Policy Science (Again), JOTWELL (December 16, 2021) (reviewing Bernard D. Goldstein, What the Trump Administration Taught Us About the Vulnerabilities of EPA’s Science-Based Regulatory Processes: Changing the Consensus Processes of Science into the Confrontational Processes of Law, 31 Health Matrix 299 (2021)), https://lex.jotwell.com/taking-laws-v-out-of-environmental-policy-science-again/.

Court Personalities and Impoverished Parents

Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020).

Professor Tonya Brito’s in-depth examination of the pursuit of child support from poor fathers continues to pay significant dividends that extend well beyond family law. Producing Justice in Poor People’s Courts: Four Models of State Legal Actors highlights the that differing personalities and approaches can have on impoverished parents involved in child-support-enforcement disputes before the courts. Based on an impressive ethnographic study, Brito’s article shows how the actors involved craft stories about impoverished family dynamics as a way to make sense of their own role and complicity in an often unjust system of regulating poor families.

For professors who have written extensively about a particular issue over many years, part of the challenge is situating each new contribution without succumbing to the temptation and comfort of repetition. Producing Justice in Poor People’s Courts handles this challenge beautifully. Part I briefly introduces the problem of courts seeking enforcement of child support orders against poor noncustodial fathers. Low-income fathers are often subject to child support orders that fail to take into account their ability to pay, with the amount owed based on an assumption of the availability of minimum wage employment for individuals who may face significant employment barriers or even incarceration. The result is that many poor fathers become child support debtors, failing to make payments because of their poverty—not because of an unwillingness to provide such support. As Brito notes, these fathers are “deadbroke parents . . . rather than deadbeat parents.” (P. 153.)

Part I is a necessary starting point for the argument that follows, but it is in Part II, which describes the existing research on child support enforcement against poor fathers, that Brito’s writing starts to really shine. Those in the poverty law space are likely to have some familiarity with related scholarly work by Ann Cammett, Daniel Hatcher, Solangel Maldonado, and Brito herself. But whether the reader knows of such work or not, Part II provides an invaluable service: not only reviewing the literature, but connecting these past works in a way that highlights the problematic ways the law reduces deadbroke dads to merely debtors, irrespective of the barriers they face or the other ways they act as fathers. Producing Justice in Poor People’s Courts, Brito explains, “expands and illuminates this body of literature by empirically examining how child support law is operationalized in poor people’s courts, bridging the gap between the law on the books and the law in action.” (P. 161.) Rather than pretending that such literature does not exist (as some scholars are tempted to do in order to make flashy claims about being the first to making a particularly novel argument), or repeating arguments previously made without acknowledging as much (as some senior scholars do in order to continue to publish without putting in additional effort), Brito’s review of the literature invites the reader to care about the poor families caught in the system and to trust the study.

The heart of the article can be found in Parts III and IV. The research methodology section is a necessary component and fitting for a study funded by the National Science Foundation, but law professors are likely to skim it. That said, Part III shows the level of care Brito and her study partners put into ensuring the comprehensiveness and depth of their court observations and of their interviews of those involved, including judges, government lawyers pursuing back child support, and lawyers representing defendant fathers. The study involved nearly five years of site visits, which ended only when those visits reached “a point of saturation,” and those visits were supplemented by reviews of the case files. (Pp. 171-72.) Put differently, Part III establishes that the study is based on in-depth qualitative ethnographic work.

Brito’s primary argument is that judges and lawyers involved in child support enforcement fit into four archetypes: navigators, bureaucrats, zealots, and reformers. I do not want to spoil the article by fully presenting their characteristics, but all four types share a desire to make sense of and justify their own participation in the criminalization of poor fathers. As Brito highlights, bureaucrats imagine themselves bound by a set of rules that they have no choice but to implement when poor fathers appear in court. Navigators are more troubled by their role and, seeing no good options, respond by kicking the can down the road—issuing continuances and second chances to poor fathers, while still faulting them for not meeting the demands of child support orders. Zealots and reformers approach the challenge of squeezing payments out of poor fathers from opposite corners. Zealots (perhaps my own quibble with the article is Brito’s value-laden choice to use this label) celebrate single mothers and are not burdened by doubt when it comes to judging poor fathers who fall behind on child support. Reformers—the study found only two such individuals—seek to change the system from within in a way that is more protective of the liberty interests of fathers who cannot afford to pay child support.

Producing Justice in Poor People’s Courts is worth reading not just because it does such a great job identifying and bringing out these archetypes, but also because it highlights the ways parents can experience very different forms of “justice” depending on the type of actors who happen to be involved (quite randomly) in their case. Taking a broader view, the approaches actors take to justify their own roles within the child-support-enforcement system differ, but they all struggle to reconcile their self-image with the injustice involved in trying to wring payments out of people who may not be able to make such payments. The article is both a tour-de-force, connecting lots of prior work with a remarkably in-depth study, and a call for other scholars to invest in qualitative ethnographies of those settings where the law shapes the lives of poor people.

Cite as: Ezra Rosser, Court Personalities and Impoverished Parents, JOTWELL (November 19, 2021) (reviewing Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020)), https://lex.jotwell.com/court-personalities-and-impoverished-parents/.