In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.
Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion.
In Bostock, Grove contends that Justice Gorsuch’s majority opinion exemplified “formalistic textualism” because it focused intently on the statutory term “because of sex” and what that term means in the context of sexual orientation-based discrimination. By contrast, Grove characterizes both Bostock dissenting opinions as engaging in “flexible textualism”—because the dissents relied on atextual considerations including public views about homosexuality in 1964, other statutes enacted after Title VII, and the “far-reaching” consequences of construing Title VII to cover discrimination based on sexual orientation.
After elaborating the differences between “formalistic” versus “flexible” textualism, Grove provides some historical context for the Bostock case, tracking both the rise of textualism as a response to purposivism and the early judicial treatment of Title VII and sexual orientation claims based on a purposivist approach. Her point is that purposivism does not always tend toward “progressive” outcomes, and textualism does not always favor “conservative” ones. It is a point that others have made, but that bears repeating because it often gets lost in the focus on the U.S. Supreme Court, where the conservative Justices also tend to be the biggest proponents of textualism.
In the end, Grove endorses “formalistic,” as opposed to “flexible,” textualism—arguing that “formalistic textualism” is better at constraining judicial discretion and producing a predictable result, both rule of law values to which textualism aspires. But consistency with textualism’s own avowed interpretive goals is not Grove’s primary reason for championing “formalistic textualism;” rather, she has in mind her own unique normative goal for textualism: Grove argues that textualism can and should function in a manner that protects the legitimacy of the judiciary, by mitigating the ideological pressure judges naturally feel to rule consistently with their political preferences. Grove situates this new normative goal for textualism in Article III of the Constitution, which she reads to call for judicial independence and apolitical decisionmaking. Conversely, she notes that Article II injects politics into judicial appointments, by giving the appointment power to the President and Senate—and urges that a more cabined form of textualism could serve to alleviate the tension that inevitably exists between judges’ Article II-ensured political leanings and their Article III obligation to be independent.
Grove’s analysis of Bostock’s multiple textualisms is insightful and provocative. And her efforts to promote judicial independence and greater predictability in statutory interpretation are admirable. I am less enamored of her push for courts to adopt a more formalistic approach to textualism. (As I have explained elsewhere, I have doubts about whether a “formalistic” textualism can truly constrain judges in the manner Grove envisions and favor a more pluralistic approach to statutory construction, at least as a check on judges’ inevitable personal biases). That said, Grove’s recommended formalistic textualism approach—and particularly her Article III legitimacy rationale—is highly original and well-reasoned, and is worthy of attention from statutory interpretation scholars. Grove’s Article III arguments appear to be part of a larger project to promote judicial legitimacy, but that does not detract from the utter novelty of her normative take on textualism, or the incisiveness of her exposition of the multiple textualisms at work on the modern Supreme Court.
In short, Which Textualism? is a thought-provoking article and a highly enjoyable read, and it should be on the to-read list of anyone interested in Bostock, textualism, or questions about the judicial role and/or legitimacy of the Court.
Focusing on Black American lives during the Covid-19 pandemic of 2020, UDC Law Professor Etienne C. Toussaint’s latest article is a tour de force, which provocatively yet persuasively argues that U.S. history, law, and society iteratively reconstitute socioeconomic inequality through “collective rituals of white supremacy that both create and reconstitute anti-Black racism and redeem white privilege.” (P. 5.) For Toussaint, the catastrophe of pandemic illuminates the fragility of U.S. democracy in two significant ways: not only has the pandemic unmasked “the adverse impact of decades of inequitable laws and public policies in low-income Black communities across the United States[,]” but it has also spotlighted “America’s racially biased, violent, and supervisory policing culture[.]” (P. 3.)
These themes are well-known to scholars of Critical Race Theory (CRT) and poverty law in the United States. Toussaint’s contribution feels exciting and noteworthy because of his skillful synthesis of multiple literatures within legal scholarship and across the disciplines, including inter alia, anthropological theory on rituals; critiques of rights-based discourse (domestic and international) for reifying abstract liberal ideologies of equality, liberty, and universalism; and an adroit evaluation of Martha Fineman’s theory of human vulnerability (and Amartya Sen’s theory of development as freedom) in light of the collective experience of Black Americans under white supremacy.
I particularly enjoyed Toussaint’s review of Critical Legal Studies scholarship that deconstructed domestic “rights-based discourse as a tool to dismantle social and economic inequality” (P. 26) and CRT scholarship that demonstrated “the importance of rights to the freedom struggles of oppressed and marginalized populations, including the plight of Black Americans from chattel slavery to Jim Crow segregation to mass incarceration.” (P. 28.) I also appreciated his argument for advocates to draw upon a reconstructed human rights discourse—tempered by the social struggles of Black Americans—to challenge the normative underpinnings of contemporary U.S. public policy and articulate an emancipatory vision of democracy.
Toussaint’s most important theoretical contribution, however, is his dreadful yet cogent analysis of the ideology of white supremacy. Tousaint uses the lens of the late religious studies scholar Catherine Bell’s theorization of “the ritual, in materialist terms, as a bridge between tradition and an ever-changing social world, a structural mechanism that navigates the tensions between the internal moral self and the external sociopolitical order” (P. 9). He then elaborates:
The historic and ongoing subjugation of Black people in America is forged by discrete “ceremonies” of racial ritualization that use race to construct notions of “domination and resistance within the arena of the social body.” In so doing, rituals of white supremacy create “white sacred time” by enabling historic anti-Black ideas to be “born again,” interrupting modern sociopolitical life with racist traditions that “renew, regenerate, and re-energize their participants, infusing the present with holy meaning.” (P. 10.)
One has only to recall photographs and similar representations of past instances of openly anti-Black racism (e.g., lynching and other practices of racialized and sexualized violence against Black Americans before and after Emancipation) and then compare them to one’s experience or memory of today’s (barely concealed) anti-Black racism (e.g., the incessant killing of Black Americans by police or vigilantes) to feel sick at how apt Toussaint is to identify that public (and private) anti-Black violence recreates “white sacred time,” infuses the present with an unholy meaning, and thereby redeems the ideology of white supremacy for the twenty-first century.
Informed by, and valuing, Black American lives, and their literary distillations like Ralph Ellison’s 1952 novel, Invisible Man, Toussaint discerns and fills a lacuna in U.S. political and sociolegal theory—sacrifice—in particular “the power of institutional arrangements to erase aspects of humanity from our view entirely, such as the involuntary sacrifices that sustain racial hierarchy, and the everyday rituals of white supremacy.” (Pp. 44-45.) With these historical and contemporary realities in mind, Toussaint concludes by urging Americans to engage in “a radical (re)imagination of American democracy, one that wrestles with the erasure of Black sacrifice from the American consciousness and overcomes the ubiquity of racial ritualization that produces invisible citizens.” (Pp. 24-25.)
In closing, I come away from Of American Fragility musing over how to perform different rituals—capable of infusing the present with the sacred significance of interracial justice and other dimensions of intergroup justice and social solidarity.
This is serious scholarship and well worth reading.
Rest in Power
Amadou Diallo (Sept. 2, 1975 – Feb. 4, 1999)
Sean Bell (May 18, 1983 – Nov. 25, 2006)
Oscar Grant (Feb. 27, 1986 – Jan. 1, 2009)
Trayvon Martin (Feb. 5, 1995 – Feb. 26, 2012)
Rekia Boyd (Nov. 5, 1989 – Mar. 21, 2012)
Shantel Davis (May 26, 1989 – Jun. 14, 2012)
Eric Garner (Sept. 15, 1970 – Jul. 17, 2014)
Michael Brown Jr. (May 20, 1996 – Aug. 9, 2014)
Laquan McDonald (Sept. 25, 1997 – Oct. 20, 2014)
Akai Kareem Gurley (Nov. 12, 1986 – Nov. 20, 2014)
Tamir Rice (Jun. 25, 2002 – Nov. 23, 2014)
Natasha McKenna (Jan. 9, 1978 – Feb. 8, 2015)
Walter Lamar Scott (Feb. 9, 1965 – Apr. 4, 2015)
Freddie Gray Jr. (Aug. 16, 1989 – Apr. 19, 2015)
Clementa C. Pinckney (Jul. 30, 1975 – Jun. 17, 2015)
Cynthia Marie Graham Hurd (Jun. 21, 1960 – Jun. 17, 2015)
Susie Jackson (Jan. 28, 1928 – Jun. 17, 2015)
Ethel Lee Lance (Aug. 30, 1944 – Jun. 17, 2015)
Depayne Middleton-Doctor (Dec. 15, 1965 – Jun. 17, 2015)
Tywanza Sanders (Jul. 23, 1988 – Jun. 17, 2015)
Daniel L. Simmons (Jul. 16, 1940 – Jun. 17, 2015)
Sharonda Coleman-Singleton (Sep. 24, 1969 – Jun. 17, 2015)
Myra Thompson (Dec. 5, 1955 – Jun. 17, 2015)
Sandra Bland (Feb. 7, 1987 – Jul. 13, 2015)
Alton Sterling (Jun. 14, 1979 – Jul. 5, 2016)
Philando Castile (Jul. 16, 1983 – Jul. 6, 2016)
Keith Lamont Scott (Feb. 3, 1973 – Sept. 20, 2016)
Stephon Clarke (Aug. 10, 1995 – Mar. 18, 2018)
Botham Shem Jean (Sept. 29, 1991 – Sept. 6, 2018)
Breonna Taylor (Jun. 5, 1993 – Mar. 13, 2020)
George Floyd (Oct. 14, 1973 – May 25, 2020)
And countless other Black Americans whose lives matter.
Cite as: Marc-Tizoc González, Visibly Fragile America
(January 4, 2021) (reviewing Etienne C. Toussaint, Of American Fragility: Public Rituals, Human Rights, and The End of Invisible Man
, 52 Colum. Hum. Rts. L. Rev.
__ (forthcoming, 2021)), https://lex.jotwell.com/visibly-fragile-america/
The New White Flight makes two significant contributions to our understanding of race and education. First, it argues that white parents chose to send their children to segregated, disproportionately white schools. This choice is reflected in white residential preferences for areas where “pricing-out mechanisms” ensure that the local school is disproportionately white. (P. 254.) This racially-motivated choice holds “even when school quality is controlled for, meaning that whites tend to choose predominately white schools even when presented with the choice of a more integrated school that is of good academic quality.” (P. 236.) Second, it shows how charter schools give white parents a way to act on their preference for majority white schools even within school districts where only minority of students are white. Charter schools and other school choice programs, by enabling white parents to act on their general preference to avoid schools that are predominantly Black or Latino, facilitate the creation and maintenance of “white charter school enclaves” within larger diverse school districts. (P. 262.)
It would be tempting to write off both contributions with a yawn. A cynic might ask what is new about white parents wanting white schools and school choice enabling educational segregation? That, after all, is the story of how white parents reacted to Brown v. Board of Education. But by forcefully insisting that segregated education today is a result of white parents choosing to avoid predominantly Black schools, Professor Wilson challenges race-neutral explanations for why whites prefer disproportionately white schools. And by laying out the ways charter schools, through their regulatory framework as well as their educational philosophies, cater to white parents seeking to send their kids to disproportionately white schools, Professor Wilson shows the negative consequences of educational choice programs. Ultimately, the article is an eye-opening and sobering look at how the choices of white families further educational inequality at a societal level and even within school districts. It is a valuable read for anyone interested in poverty law, education policy, and property law, but the audience that could most benefit from the article arguably are well-educated urban white parents.
What is most powerful about The New White Flight is that it pulls no punches. Even though the article gives a long list of reasons why white parents might opt to send their kids to predominantly white schools, none of these ultimately excuse those parents. Connecting Milton Friedman’s theoretical justifications from 1955 for a market- or choice-based approach to education to the desire of whites to avoid desegregation, Professor Wilson emphasizes that when white parents “exclude by failing to choose to associate with students of color, the consequence is a form of segregation that is palpable and harmful to students of color.” (P. 251.) Choice is inseparable from exclusion given the racial dynamics of cities and of public education.
Similarly, though it is tempting to categorize educational segregation as merely a consequence of residential settlement patterns along race and class lines, in other words to treat it as a natural result of where people live, Professor Wilson does not buy this distinction. Whites cannot claim refuge in the argument that the local school just happens to be whiter than other schools in the larger urban area. Instead, The New White Flight recognizes that the residential and educational choices of white families together are part of the same story: “whites as a collective are choosing racially segregated schools . . . whites are choosing school segregation.” (P. 253.)
The charter school phenomenon that the article focuses on are those charter schools that are notably whiter than the demographics of the school district overall. Professor Wilson breaks charter schools into four different types. Two types–traditional charter schools that focus on rigorous, back-to-basics education and conversion charter schools that are basically failed public schools flipped into a charter school arraignment–tend to have more students of color and low-income students. The other two types–prestige charter schools that offer progressive or project-based educational approaches and neighborhood preference charter schools–tend to have whiter and wealthier student populations. As Professor Wilson argues that these last two types of charter schools “insulate white students from large numbers of students of color and allow whites to engage in white flight without residential mobility.” (P. 273.)
One example of how this works detailed by Professor Wilson that is particularly troubling is in Georgia, where the charter school legislation states that charter schools must give preference to kids within the proposed school’s attendance zone but allows those proposing the school to define their own attendance zone. (P. 272.) White parents or charter schools serving them can, as a consequence, create charter schools that target predominantly white neighborhoods and that by design will have a mostly white student population. If all Professor Wilson’s article did was call out Georgia’s legislation, it would have been a contribution and a sign of how far whites continue to go to use the tools of the state to self-segregate.
Professor Wilson is not writing in a vacuum. There are other important works that look at how the choices of whites, especially white parents, contribute, directly and indirectly, to racial subordination. What makes The New White Flight worth reading even for those people well versed in matters of educational inequality and the reproduction of racial hierarchy is how unflinching it is. It gives no quarter to white parents whose kids are in predominantly white schools. Speaking as a white parent married to a Latina, it can therefore be uncomfortable to read, in part because the choices made while parenting–including where to live and what school to attend–can feel like the most personal and most individual. But as the article shows, the choices white parents make collectively can have tremendous negative impacts on students of color and lower-income students.
The Law of Rescue connects aiding migrants to the body of law governing rescue generally. Professor Shalini Bhargava Ray proposes a new theoretical framework for the law of rescue based on her examination of prosecutions for migrant rescue. Her framework de-emphasizes economic interests and lifts up considerations of liberty and dignity.
While “[t]he law of rescue was not designed to express, promote, or protect the human dignity of beneficiaries or the liberty of rescuers,” (P. 623) Professor Ray argues that it should be redesigned to do so. Her new framework would balance three considerations: (1) the rescuer’s liberty to engage in the rescue; (2) the beneficiary’s need for rescue; and (3) the potential third-party harm flowing from a consensual rescue.
The law of rescue cuts across many substantive areas of law. Professor Ray identifies tort law, contract law, criminal law, public international law and maritime law, in addition to immigration law, as providing standards for rescue. Professor Ray examines how these substantive areas treat rescue in various circumstances and the historical motivations behind those rules. She is particularly interested in how the law of rescue treats both the person needing rescue and the (potential) rescuer.
Professor Ray finds that the law surrounding rescue mostly has developed around economic interests and commercial development. Existing theoretical frameworks are anchored in and dominated by the concerns of economic elites: economic efficiency and property rights. It is a mistake, according to Professor Ray, to ignore dignity interests of the rescued and liberty interests of rescuers. Because these considerations are not prominent, “the law of rescue leaves vast areas of important rescue work exposed to prosecution.” (P. 623.)
Migrant rescue, for example, can be subject to prosecution. Federal law prohibits transporting or smuggling an individual but also includes a prohibition on harboring. Harboring includes inducing or encouraging an authorized individual to remain in the United States. Some courts have interpreted the prohibition on inducing or encouraging to include any kind of assistance, including free housing and food.
The government does prosecute under the harboring laws. Professor Ray details the 2018 arrest and trial of Scott Warren. Mr. Warren was charged with harboring counts after he provided food, water, and shelter to two migrants in Arizona. While Mr. Warren was acquitted of the harboring charge, his arrest and trial serves as a powerful example of what is at stake for rescuers when rescue is illegal.
Applying her new framework to the rescue of migrants, Professor Ray concludes that prohibiting rescue in this context degrades both liberty and dignity. If the law protects the right not to rescue, as it does in torts, then it should equally promote the interests of those who want to rescue.
To Professor Ray, the rescuer’s liberty interest in rescuing connects to the freedom of association, both as a constitutional norm and a moral value. Professor Ray argues that this liberty interest is strongest when a rescuer seeks to prevent death, as is frequently the case in aiding individuals who recently crossed the US border illegally. The liberty interest is strongest in this situation because the individual already has crossed the border (the rescuer is not leading the border crossing) and the rescuer is not affecting the ultimate decision whether the individual will be able to remain legally in the United States. Instead, the rescuer is promoting another human’s life and welfare while satisfying the rescuers own moral values. In such a scenario, the beneficiary’s dignity risks are high, as survival is at stake. As Professor Ray states, “[p]ermitting those migrants who do cross the border to survive the journey is the least the law can do.” (P. 658.) Consideration of the risk of third-party harm incorporates externalities. This risk is low, and, in any case, outweighed when the migrant’s life is at stake. Professor Ray considers externalities such as littering, trespassing on private land, damage to private land, property crimes, personal crimes, and the protection of sovereignty.
Professor Ray’s article is an important contribution to a growing trend to link immigration law to other areas of law. Traditionally immigration law has been seen as an outlier and is often left out of conversations about mainstream legal developments. This has been changing somewhat in administrative law and constitutional law. The Law of Rescue builds another immigration law bridge.
The Law of Rescue also is an important contribution because it identifies and highlights the importance of dignity interests in the law. Dignity interests often are overshadowed by economic interests, but Professor Ray reminds us that they are just as important. In Professor Ray’s new theoretical framework, dignity is a factor among three to be considered. In some ways, her proposal is in fact quite modest; one might argue that dignity should be the overriding consideration. Her proposal seems revolutionary, however, because dignity as a concept is waning in immigration law. Reimagining the law of rescue is a good place to start to inject dignity back into how the law treats migrants.
Not every day do we encounter a work of research that enables us to study the law through a whole new lens. Indeed, over the last fifty or so years, legal scholars have discovered new ways to apply well-established bodies of knowledge to the research of law, helping us to both give normative meaning to existing rules and formulate new ones. No better example of this “interdisciplinary revolution” comes to mind than the world of law and economics, which in all fairness should be deemed the world of law and microeconomics. Prior to the publication of Yair Listokin’s book, Law and Macroeconomics, we as researchers have applied economic insight to legal research solely by examining specific actors’ response to incentives provided by law—a microeconomic perspective.
Listokin’s book challenges this paradigm with an invitation to consider how Macroeconomic thinking should also affect the way we understand and interpret the law, when unique conditions call for such an interpretation. It is an invitation to broaden our perspective: away from the world of local incentives intended to optimize behavior of specific players, into ways we can harness the law to address problems such as unemployment, total output, and economic growth.
Particularly relevant today, Listokin’s book shows that when countries and economies face the terrible days of recession—and they have already exhausted the possibility to stimulate the economy through traditional monetary and fiscal policies—making use of the law for macroeconomic purposes provides a powerful tool, albeit one that might contradict more traditional forms of legal analysis. Consider one of the examples given in chapter 11 of the book, in which a real estate developer intends to build a block of apartments and is facing push back from a local neighbor worried of noise and depreciation of his home’s market value. Such examples have been discussed tirelessly in legal literature over the last decades, and every law student who graduated from the basic Law and Economics introductory course can recite Coase’s and Calabresi & Melamed’s seminal work on transaction costs, and property and liability rules; in short, a microeconomic analysis requires the judge to consider several factors in making the decision of granting the plaintiff an injunction. Among these considerations, the judge may attempt to balance the harm imposed upon the plaintiff by the defendant with the cost imposed on the defendant by refraining from harm.
Alternatively, the judge may realize that the parties will likely reach a deal—ensuring the neighbors’ entitlements are well-protected and that transaction costs (broadly defined) between the parties are small enough. It is possible the court will be convinced that granting an injunction is efficient, under the assumption that the neighbor will be able to set a price tag on the harm the project will impose on him.
The important thing to notice is that this analysis rests upon the assumption that to achieve an efficient decision, the court needs to take into account only the interests and incentives of the two parties in dispute, as these are the only interests and incentives relevant to the case. At this point, Listokin asks us to imagine such a case coming before the court not in ordinary economic times, but during a recession—when unemployment is high, and interests’ rate is already at its lowest levels. In such grim economic reality—with construction projects already a scarce commodity—postponing the construction project by way of an injunction will probably lead to the unemployment of the developer’s employees. This in turn will further diminish overall consumer spending and negatively affect growth. It is apparent that the parties cannot be trusted to account for such massive costs, as they do not directly internalize them. It follows that the court cannot simply leave it for the parties to reach an efficient outcome even if transaction costs between them are low, and must take a much more active role in settling the dispute for the benefit of all involved. It is therefore wise for the judge—from a macroeconomic perspective, rather than a microeconomic one—to favor defending the neighbors’ entitlements by use of a liability rule, namely ordering the developer to pay damages and continue with the construction of the project in order to stimulate the economy.
One can imagine several ways that one would apply the ideas in Listokin’s book to judicial decisionmaking. Going back to the earlier example, one might argue the court can take into account unemployment considerations through the familiar term of negative externalities, which already made its way into conventional legal thinking. By granting an injunction, the argument will follow, the court will allow the neighbors to externalize costs to the developer’s employees. The judge is therefore obliged, even by way of ‘traditional’ microeconomic thinking, to consider the interests of the employees when giving its ruling. Although tempting, I find such attempts to conceptualize Listokin’s work unhelpful because they mask first and second order effects. Listokin’s point is not that there is a second-order externality which policy makers fail to account for and that not accounting for it distorts the analysis. My colleague Dick Markovitz has been correctly arguing something similar to that for decades. Rather, Listokin argues that in times of recession, these Macro externalities dwarf any gains and losses traditional, parties-focused, microeconomic analysis of law has been analyzing. Turning a blind eye to this critical macroeconomic element will result, in our example, in a poor understanding of the merits of liability rules during a recession and why such rules should be applied by the courts. This is exactly what differentiates between a microeconomic and a macroeconomic analysis of the law, and a major part of what makes Listokin’s book so exciting.
It is with the last point, the appliance of macroeconomically-merited rules by the court, with which I would like to end this review. It must be admitted that Listokin’s intellectually challenging proposal to integrate macroeconomic notions into the ruling of the law might pose an institutional problem: how will judges, most of them lacking in economic education, be able to apply this knowledge into their rulings? Listokin proposes that whenever a law is promulgated as an open-ended legal standard lawyers should educate the judge so that she takes into account macroeconomic considerations, or else we might conclude it has erred in its decision.
Although Listokin’s proposal is an elegant solution enabling us to create legitimacy for the introduction of macroeconomically efficient decisions into the law, it is still questionable whether judges will know which decisions are macroeconomically efficient. I would like to offer a different approach to this problem. In my view, the solution lies in crafting certain laws as rules rather than standards; These will be “on-the-shelves” laws, taking effect whenever they are macroeconomically called for—that is, mostly in times of recession, as certain economic criteria are met (such as unemployment levels or negative growth rate). The laws, articulated as rules, will aim to achieve macroeconomic goals by directly instructing the court on how it should make its ruling; legislation will instruct courts—under specified circumstances—to grant damages rather than injunctions, discharge debtors’ debt (as also discussed on chapter 11 of the book), modify utility regulation rules, deny petitions aimed against government spending that would otherwise be inhibited by procurement rules, disregard regulations normally imposed by zoning rules that postpone spending and growth, or apply whichever other macroeconomic policy seen fit by the legislator. That policies change automatically in bad times is not foreign to our legal system. The Unemployment Insurance Extended Benefits program provides extended benefits using automatic triggers such as state-wide unemployment rates. FEMA can use the Disaster Relief Fund to alleviate the suffering and damage which result from disasters once the President has declared an emergency or a major disaster had occurred. Legislatures could provide similar stand-by authority to courts.
But then, the question that must follow is whether such laws can be used other than in times of recession. Indeed, Listokin himself admits that the high complexity involved with trying to implement macroeconomic ideas within the law might render such at attempt efficient only in times of despair, after fiscal and monetary policies have ran their course. Yet the ideas first brought forth in Listokin’s book ignite our imagination as to how we can design the law to address other issues macroeconomic scholars concern themselves with—such as price levels, economic growth, and more. While Listokin’s book focuses mainly on recession, its ideas offer a new platform for exploring such macroeconomic subjects and open a door for a whole new field of law and economics research.
In a delightful article recently published in the Florida International Law Review, Professor Russell Weaver has done a great service to us all by helpfully summarizing the current state of the law concerning nationwide injunctions, drawing on and summarizing recent scholarship and numerous cases in the field. His article should prove to be of great value to the practitioner and the professor alike and, given its length and clarity (at seventeen pages, Prof. Weaver’s article packs quite a punch), those teaching in the area may even consider assigning it to their students. I probably will, because although many of my students seem to grasp the logic of compensatory damages due to some exposure in their first-year contracts and torts classes, they often seem mystified, at least initially, when it comes to injunctions, which is to say nothing of nationwide injunctions!
Part of this mystery, it seems, stems from the fact that injunctions grew up in courts of equity, whereas damages (primarily) grew up in common law courts, and the first-year curriculum (outside of a few contracts cases on specific performance) largely focuses on the latter at the expense of the former. This means that although students are familiar with the idea that compensatory damages should generally try to return an injured party to the position it would have occupied but for the wrongful harm inflicted by the wrongdoer, they have a harder time understanding why an injunction should be issued before a wrongful harm has ever come to pass. But the difficulties do not stop here. Unlike damages, which can be measured in dollars, they also find measuring the “amount” of an injunction to be counterintuitive. In theory, a court should award the “amount” of injunction needed to prevent the plaintiff from suffering from a potential future wrongful harm. But even talking about injunctions in this way seems odd, for injunctions cannot be “counted” in the same way that dollars can, and therefore determining the proper scope of an injunctive remedy is incredibly difficult.
Which brings us to another point: in theory, the scope of an injunction should not exceed the scope of the threatened harm, so that (for example) a company-wide injunction would only be appropriate where a company-wide wrong is taking place. In practice, however, it is easy to game the system, especially in the area of national injunctions, which has seen tremendous growth over the past several decades. This is so because plaintiffs can (and frequently do) seek, for example, a nationwide injunction in one jurisdiction, fail to obtain it, and then bring suit in another jurisdiction several years later. Then, in this new jurisdiction, plaintiffs win, and have their “win” extended throughout the United States (including, it should be noted, the jurisdiction in which their original suit previously failed). Although these cases are extremely interesting, productive, and fun to talk about in class, they are difficult to summarize (much less make sense of) for the students, not to say anything of the professor’s ability to understand them!
Enter Professor Weaver. Not only does his article do a fabulous job summarizing the current state of the law, but he helpfully spends a good deal of space discussing the policy implications of nationwide injunctions, canvassing the pros and cons of allowing district and circuit courts to set policy on the national legal stage.
So, for instance, against the argument that nationwide injunctions might be necessary to promote uniform laws designed to protect large numbers of otherwise powerless individuals from “unconstitutional” government policies, Prof. Weaver balances the argument that these lower-court decisions are sometimes found to have been “wrong,” in that the actions deemed “unconstitutional” by a district or circuit court is found to have been, according to the Supreme Court, perfectly legal, with the result that the uniformity that was imposed by lower courts was, in point of fact, without a legal basis. Similarly, Prof. Weaver discusses how, on the one hand, allowing a lower court to make a decision for the entire nation may promote “judicial economy” by having a “single judge hear and decide the issue” before it, which, in turn, can save the judicial resources of all the other courts around the country who no longer need to “consider and decide the same issue.” (P. 111.) On the other hand, however, Prof. Weaver points out that such judicial economy comes at a price: specifically, allowing the precipitous review of important national issues without adequately developing the issue in other districts and circuits. Sometimes, as where a more complete and thorough understanding of the issues can be developed in multiple district and circuit courts, a little inefficiency can be a good thing!
Prof. Weaver discusses a number of other important issues created by nationwide injunctions as well (the potential for nationwide injunctions to politicize courts, encourage forum shopping by litigants, and over-empowering individual district and circuit judges), and I would encourage any interested readers to check out and read his entire article. Not only is it a quick and delightful read, but it is one that I your remedies students will likely enjoy as well. It is probably the most accessible summary of these issues I have seen in a single place.
All it took was a frequently lethal, highly infectious, globally distributed virus. In anxious self-protection, Homo sapiens drastically curtailed the planet-altering behaviors we call “economic activity.” The non-human parts of our ecosystems responded. Above cities, toxic and murky air cleared. Fossil fuel extraction sputtered; greenhouse gas emissions slowed. Wild animals returned to places from which they had long been exiled. Birds singing for mates vied more with each other and less with the drone of humanity. Even Earth’s own seismic rumbling sounded more distinctly against a diminished background of people’s percussive pounding.
The pandemic pause accomplished, however briefly, results that have eluded all the world’s environmental policy makers. These results reminded us just how tight the correlation is between the human economy and human environmental impact–and, by negative implication, exploded the myth that “sustainability” can be a pragmatic and achievable goal of environmental law. The Earth has shown that to sustain normal levels of human population and economic growth, ecosystems must absorb massive, deeply disruptive, perturbations. In Letting Go of Stability, Professor Robert Fischman rejects the sustainability shibboleth and thoughtfully explores the potential of resilience, rather than sustainability, to provide a conceptual anchor for environmental law in the decades ahead.
Fischman, as he acknowledges, is not the first to question the merit of sustainability or to highlight the potential of resilience as a guiding principle of environmental law. Letting Go of Stability stands firmly on the shoulders of at least two scholarly traditions in the scientific, social-scientific, legal, and environmental planning literature: the development of adaptive management techniques for natural resources and the consideration of system resilience for legal regulatory design in many policy contexts. Using an admirable mix of theory and case description, Fischman argues that the scientific study of resilience in ecosystems offers specific lessons that will help society to address the persistent “fundamental questions of environmental law.”
Why resilience? Fischman observes that environmental law, like much of law, implicitly has endorsed the goal of stability, seeking, for example, predictable and consistent production of ecosystem services. But to expect stability is unrealistic. Ecosystems, and their interactions with people that form numbingly complex “social-ecological systems,” are intrinsically and unpredictably dynamic. Hence, Fischman contends, instead of trying to maintain social-ecological systems in some desired equilibrium state, it makes more sense for law to aim to protect systems’ ability to restore a desired equilibrium in response to stress. That is, to keep systems resilient.
Fischman would, accordingly, have environmental law focus more on process and less on results. But as a goal, resilience is atypical and slippery. Resilience, after all, is a property that inheres in a system rather than an output that results from a system. And human beings (especially adherents of a certain school of legal and economic theory) just love designing systems to maximize output.
Fischman appreciates that for the most part, we value ecosystems not for what they are, but for what we get from them–whether nesting birds or irrigation water. Nevertheless, he argues, the goal of resilience should not and would not be indifferent to outputs. Process for process’s sake, Fischman emphasizes, is not nearly sufficient as a policy goal. Achieving resilience may not maximize or stabilize the production of a particular system output, but it can enhance human and environmental welfare by narrowing variability and reducing the probability of significant disruption. “The greatest challenge for resilience as an environmental law objective,” Fischman writes, “is that it will not fulfill the expectation of sustaining what we like.” (P. 718.) The solace is that “[r]esilience will promise less but deliver more of what it promises.” (P. 709, emphasis in original.)
Moreover, Fischman astutely observes that there are some types of promises that environmental law based on resilience could fulfill more easily than is possible in a legal regime focused on stable outputs. Using the example of a degraded stream in Indianapolis, Fischman describes how resilience could be used not just to achieve narrowly-conceived environmental quality objectives but to reimagine and reconfigure the entire social-ecological system of the stream and its surrounding community. Resilience need not always buttress an existing equilibrium; sometimes a resilience frame moves policy toward a change large enough to push a system into a new and better equilibrium.
Can the attribute of resilience also push environmental law itself to a new and better equilibrium? In addition to being an overarching policy objective, should resilience be a design element of environmental law as well? The final section of Letting Go of Stability ponders these “meta” questions.
Of course, our legal system as a whole is built for resilience: by Constitutional design, common-law tradition, and institutional reality, it resists change, even to a fault. So how would design for resilience inform and improve environmental law particularly? Fischman argues that the features that make real-world systems resilient are uniquely applicable to environmental law because of environmental law’s heavy emphasis on process and the polycentric nature of environmental policy puzzles. As he notes, the existing body of environmental law already incorporates some features of resilient systems, such as statutes that allow relatively large amounts of regulatory discretion and that require agencies periodically to reassess their prior decisions. Optimistically, he envisions that designing resilience into environmental law will entail “inviting new voices to the table,” thereby enhancing environmental justice and “substantially increas[ing] the constituency of Americans who recognize how they benefit from environmental law.” (P. 722.)
This article does not focus on particular policy prescriptions. But Fischman’s vision is not purely theoretical. He is clear that the shift to a resilience theory of environmental law, if properly executed, would have significant substantive implications. For example, he writes, “[b]urdens of proof in common law and administrative settings need root-to-branch reassessment in light of the resilience framework.” (P. 725.) He is certainly right about the need; let us hope that an enlightened generation of legislators, judges, and administrators seize the opportunity.
Letting Go of Stability grew out of Fischman’s inaugural lecture as the George P. Smith, II Distinguished Professor at the Indiana University Maurer School of Law. This thought-provoking article demonstrates that the appointment was wisely made.
Cite as: Steve Gold, Is Resilience Resilient?
(September 30, 2020) (reviewing Robert L. Fischman, Letting Go of Stability: Resilience and Environmental Law,
94 Ind. L.J.
689 (2019)), https://lex.jotwell.com/is-resilience-resilient/
In Access to Algorithms, Professor Bloch-Wehba unleashes both the First Amendment and FOIA (the Freedom of Information Act, along with its state counterparts) on algorithmic governance opacity. She argues that the law of access encompassed by FOIA and the free press clause can help promote a public debate of algorithmic decision-making by governments as well as provide avenues by which individuals–especially under-resourced individuals–might find redress for the sometimes catastrophic output of automated systems.
Algorithmic decision-making in the context of law enforcement (such as sentencing and bail) has been mapped by and Bloch-Wehba’s article touches on algorithmic criminal law determinations here as well. In addition, she unpacks algorithmic operations which affect government employees, specifically using “value-added assessments” to quantify teacher effectiveness, which has been challenged by teachers’ unions. But her attention to algorithmic denials of Medicaid benefits has heretofore received scant attention. Especially because elderly Medicaid applicants and recipients seeking long term care benefits are almost by definition under-resourced individuals, the opacity of algorithmic decision-making in this context deserves careful examination. But the very opacity of algorithmic operations which generate denials or reductions of public benefits presents a challenge for scholars as well as the citizens who bear the brunt of the automated decisions.
Governmental decision-makers tend to hold their algorithms close to their chest. Making matters worse, much algorithmic decision-making software is privately controlled. The trend is toward outsourcing. The private companies which develop the algorithms are obviously keen to retain their value and not simply leak their mechanics into the public domain. Secrecy is an even more acute problem when the algorithms themselves are outsourced to and controlled by private vendors. The problems of faulty decisions as well as bias embedded in the machine can be difficult to unearth and correct.
Bloch-Wehba examines two Medicaid examples in reported federal court opinions. In the first, APS Healthcare, Inc., a private “waiver administrator” slashed the Medicaid waiver benefits of a group of West Virginians with severe developmental disabilities. The company’s algorithm generated a budget which allocated benefits to individual Medicaid recipients on a year-by-year basis, using data from interviews and other assessment tools. The actual workings of the algorithm that slashed the plaintiffs’ benefits was proprietary. One plaintiff with cerebral palsy had her benefits cut from $130,000 to $72,000. As a result, she lost her community placement, declined, and became at serious risk to institutionalization.
Before an Administrative Law Judge, the West Virginia plaintiffs’ fair hearing was denied based on deference to the computer program–without investigation into the conclusions it had reached. Thankfully, the district court correctly perceived the procedural due process problems and reversed.
In a second Medicaid case arising in Idaho, plaintiffs challenged the decisions of a secret methodology to set individual budgets for home and community-based waiver benefits. In this case, the algorithm–“an Adult Budget Calculation Tool”–was government-sourced, but the state resisted disclosure of its methodology, claiming it was a trade secret. The state then offered a compromise: it would disclose the reasoning behind the plaintiffs’ benefit reductions but subject to a gag order that would prohibit redisclosure to anyone else. Although the plaintiffs ultimately prevailed, Bloch-Wehba identifies the invocation of a trade secret defense and the state’s “atomized disclosure” settlement offer as “highly problematic.” (P. 1279.)
After detailing the scope of the problem, Bloch-Wehba identifies a creative and effective solution. She emphasizes that the law of access provides a particularly useful tool in de-cloaking government methodologies to deny rights, property, or liberty. The law of access expands standing. It facilitates access to algorithms not only for the directly affected but also the general public–even scholars and journalists.
Here is a uniquely practical solution to a serious problem. One need not be a plaintiff to demand that algorithmic veils of opacity be lifted. She explains: “If the processes for government decision-making were already public, litigants would not have to fight tooth and nail to gain access to an explanation of why their benefits were slashed, their employment was terminated, or their release from prison was delayed.” (P. 1295.) To advance toward these practical ends, she maps the nuances of FOIA exemptions commonly in play in these sorts of contexts.
While undoubtedly practical, at the same time, Access to Algorithms resonates with foundational questions of value and justice. Although “algorithmic governance portends a new era in government decision-making, it must be accompanied by new forms of transparency to protect the vital role of public oversight in our democratic system.” (P. 1314.) Readers of her important article will surely agree.
Andrew B. Mamo, Three Ways of Looking at Dispute Resolution
, 54 Wake Forest L. Rev. 1399
(2019), available at SSRN
Advocates of alternative dispute resolution (ADR) often talk about the “ADR Movement” as if it were…well…an actual movement. We know what the phrase means, or at least we think we do. Since the 1970s, the popularity of extra-judicial mechanisms for conflict resolution–arbitration, mediation, negotiation, and restorative justice–has risen sharply. Over the same period, these procedures have become highly professionalized areas of study and practice. But is there a coherent “ADR Movement,” with a capital “M,” based upon a unified legal philosophy?
Not so much. In his comprehensive article, Three Ways of Looking at Dispute Resolution, Andrew Mamo carefully unravels the divergent philosophical strains that have supported the expansion of ADR over the past half-century. He explains the history of ADR against the broader backdrop of American legal and political history.
One of the reasons that this article is such a helpful contribution to the history of American civil procedure is the increasing centrality of ADR. Whether there is an “ADR Movement” or not, ADR’s constituent parts have become vastly more important in recent years. The general academic consensus has long been that trials are no longer the central means of conflict resolution in the United States. Some scholarly analysis suggests that well over 95% of all civil lawsuits end in settlement before trial. There are many possible explanations for this trend. Some point to judges taking a highly managerial approach to encourage settlement; others point to the increased professionalization of mediation services; and others point to the substantive benefits of arbitration over litigation for many types of commercial disputes. While criminal disputes present different sets of problems, scholars have observed both the increase in criminal plea bargaining (a form of negotiation), as well as the potential benefits of restorative justice mechanisms over traditional jury trials.
One might expect to find some sort of common denominator among these various trends. But as the title of his article suggests, Professor Mamo traces modern “ADR” to three distinct political philosophies.
First, he identifies a “liberal, state-centric, rights-based approach.” This approach looks at the relationship of ADR processes to traditional litigation, particularly in the context of court-annexed mediation and arbitration programs that primarily aim to lighten overcrowded court. Mamo traces this branch to the 1976 “National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice” convened by Chief Justice Warren Burger where Professor Frank Sander famously introduced the concept of a multidoor courthouse–the idea that courts should “sort” disputes almost like a Harry Potter-esque sorting hat. Some disputes would go to the mediation room, others to the arbitration room, and others to courtrooms for trial. In this conception, ADR serves primarily to support and alleviate traditional legal processes; it exists parallel to litigation.
Second, he identifies a “neoliberal, individualistic, interest-based approach.” This branch originates from the economic theories of the 1980s that emphasized free market capitalism and private bargaining in the absence of governmental or judicial oversight. Mamo ties the “win-win” negotiation strategies promulgated by Professor Roger Fisher (co-author of the celebrated book Getting to Yes) to broader beliefs in value maximization and economic efficiency that dominated the era. In this conception, ADR serves primarily to benefit the individual disputing parties; it exists outside of the legal system.
And third, he identifies an “anti-liberal, communitarian, relationship-based approach.” This branch originates from the belief that community-centered solutions to conflict–in the form of neighborhood justice centers, restorative practices, and victim-centered strategies–can create normatively better outcomes than either law-centered solutions or private-party centered solutions. Mamo traces this view even further back in American history, to early utopian and religious communities in New England, which favored systems of community norms over legal rules. In this conception, ADR serves as a more wholistic, socially conscious alternative to litigation; it exists not to benefit the government or the disputing parties, but the community.
Mamo shows how, today, ADR tries to rely on all three of these three divergent justifications: existing to help the court system, the parties, and society at large. In some ways, the “ADR Movement” rejects legal norms and procedure, preferring party autonomy and individual interests. Parties choose their own , agree to their own set of rules, and essentially determine the manner in which their conflict will be resolved. In other ways, ADR embraces court-centered or community-centered values. If a dispute goes to arbitration, that’s one fewer case for the public courts to handle on the taxpayers’ dime. If a dispute is sent to some sort of restorative practice, that theoretically benefits the broader community.
This article shows the ideological diversity within the so-called “ADR Movement.” If you attend an ADR conference, you’re likely to see Professor Mamo’s article come to life in different corners of the meeting room. You’ll find corporate lawyers drafting mandatory arbitration clauses. You’ll find self-described “peacemakers” and “conflict healers.” You’ll find in-house lawyers designing employee mediation programs to keep disputes private. You’ll find community leaders who privately resolve neighbor disputes. Big Law arbitration partners. Administrators of court-annexed arbitration programs. Hostage negotiators. Divorce mediators. Ombudsmen. All these folks can somehow fit under the “ADR” umbrella, albeit through divergent philosophical justifications.
In some ways, Professor Mamo is perfectly situated to tell this complicated story. First, he’s a trained historian, which allows him to place ADR in its full context. And second, he’s a Clinical Instructor in the Negotiation & Mediation Clinical Program at Harvard Law School, an institution that has had a disproportionate impact on the development of ADR dating back to scholars like Fisher and Sander. (He will join the faculty of Northern Illinois University College of Law next year). Harvard is one of a handful of law schools–including places like Cardozo, Missouri, Ohio State, Oregon, and Pepperdine–that invested heavily in the teaching and study of private dispute resolution in the 1980s and 90s. Sometimes labeled as “alternative” dispute resolution and relegated to “skills” courses in some corners of legal academia, ADR has become absolutely central to the ways in which American law is experienced. Indeed, these institutions were far ahead of the curve in gauging its importance to the curriculum.
ADR’s rise over the past five decades has been remarkable. But Professor Mamo elegantly reminds us that the field’s rise is best understood not necessarily as a unified “movement” and rather as a confluence of aligned interests or even historical accident. ADR contains multitudes.
What can Federal Indian Law offer public law as a whole? Supreme Court justices have famously dismissed Indian Law cases as “chickenshit” and “pee wee” cases, and scholars have worked for generations to justify the meager recognition of tribal sovereign interests within public law. Maggie Blackhawk’s wonderfully generative Federal Indian Law as Paradigm, however, convincingly argues that Indian law, far from an idiosyncratic backwater, is central to the history of public law in the United States and can provide valuable lessons for framing its future.
First, Blackhawk masterfully synthesizes the work of many scholars (including her own work on the Petitions Clause) to show the role federal Indian affairs has played in the history of government power. Indian affairs were central for the founding generation, figuring prominently in the debates over the Constitution and the early work of Congress and the Executive Branch. Concerns about foreign interference with tribal diplomacy, for example, inspired the first understanding that the Senate’s advice and consent role with respect to treaties included only approval after the fact rather than participation in negotiations.
Indian affairs also shaped many of important early contests between the federal government and the states. Fletcher v. Peck (1810) was the first case in which the Supreme Court struck down a state statute, and the state and presidential resistance to the Court’s invalidation of Georgia law in Worcester v. Georgia (1832) almost upended the ship of state. Indian affairs also contributed to the modern form of federal power. The executive branch first exercised extensive administrative powers by the mid-1800s in implementing treaties and Indian affairs statutes, while cases like Johnson v. M’Intosh (1823) and United States v. Rogers (1846) provided early judicial assertions of extraconstitutional national power. For some of the examples in the paper more work is necessary to show that treatment of federal power in Indian affairs actually influenced later public law doctrines and structures. But altogether Blackhawk powerfully makes her case that colonizing tribal nations and lands was not just America’s other original sin, it was and remained a constitutive governmental and judicial proving ground.
The next section of the paper is even more original. Blackhawk argues that understanding the paradigmatic status of federal Indian law can provide an important new frame for understanding and addressing injustice. As many have written, the black-white, slavery-freedom, segregation-integration paradigm of race relations has stymied understanding of racism in America. An equal rights framework, moreover, has limited legal efforts to address it and contributed to a conceptual separation between rights and structure in constitutional law.
Blackhawk argues that a federal Indian law paradigm can address these problems. First, the most egalitarian moves in federal Indian law have always been structural and have always ensured that tribal nations have distinct forms of power rather than simply equal rights. Indeed, well before claims of “reverse discrimination” were used to undermine civil rights, “[n]ational constitutional rights [served] as a tool to further the colonial project against Native peoples.” (P. 1798.) Federal Indian law and policy also reveal a long history of recognition of distinct forms of power that the standard paradigm might condemn as creating unequal rights. Recentering federal Indian law as paradigmatic, Blackhawk argues, might therefore normalize and encourage legal protection for collective rights, such as union organizing, or obligations of consultation and representation, rather than individual remedies.
This is a long, incredibly rich, article, and one could quibble with some of its assertions. For example, although the modern Supreme Court often stands in the way of efforts by Congress and the Executive to recognize tribal power, this has not always been the case, and the Court long played an essential role in preventing state and executive overreach. So federal Indian law provides no more evidence that the congressional and executive branches are better “suited to protect against majority tyranny” than any other field does. (P. 1796.) Second, blanket statements such as “[b]y contrast to other ‘minority’ communities, rights are feared in Indian Country rather than sought,” (P. 1859), elides Blackhawk’s own rejection of a structure-rights dichotomy and overlooks the important role that rights have played for Native people as well. But again, these are quibbles, and do not detract from the contributions of the piece.
In short, Federal Indian Law as Paradigm is a wonderful accomplishment, one that can provide a new basis for understanding the public law grounding of federal Indian law, and the federal Indian law grounding of public law as a whole.