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
(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/
In Legal Corpus Linguistics and the Half-Empirical Attitude, Professor Anya Bernstein provides an illuminating and forceful critique of the claim that corpus linguistics—the study of patterns of language usage across a wide array of English-language sources—should be used to “empirically” derive the ordinary meaning of words used in legal texts. Corpus linguistics has been a hot topic in statutory and constitutional interpretation for the past several years, as a growing number of judges, scholars, litigants, and amicus curiae have pressed for its use in cases that turn on the meaning of a legal term or phrase. Perhaps most notably, in an article titled Judging Ordinary Meaning Utah Supreme Court Associate Chief Justice Thomas R. Lee and his former law clerk Stephen Mouritsen have argued that the concept of “ordinary meaning” implicates empirical questions that the field of corpus linguistics is well-designed to answer—and have urged courts to “import [corpus linguistics] methods into the modern theory and practice of interpretation.”
Professor Bernstein’s thoughtful article astutely identifies several serious flaws with such an interpretive move, calling into question the push to use corpus linguistics to determine statutory or constitutional meaning and the effort to use corpus linguistics to add an empirical dimension to the search for ordinary meaning. Her central critique is that the use of corpus linguistics to determine the meaning of legal texts mismatches methods and goals. She contends, for example, that while corpus linguistics in linguistics makes an empirical claim to illuminate truths about how language in the corpus is used, the use of corpus linguistics in legal interpretation misuses empirical methods to make a normative claim—i.e., that the usage patterns identified through corpus analysis ought to influence the interpretation of legal texts. Bernstein labels this attempt to treat normative claims as empirical a “half-empirical” attitude. And she meticulously questions the assumptions underlying that claim.
First, Bernstein explains that legal corpus linguistics focuses on different data—the frequency and collocation of words in the corpus—than the larger-scale search for hidden but pervasive patterns in language structure that characterize corpus linguistics research’s “most exciting findings.” (She explains, for example, the linguistic concepts of syntagm and paradigm, which focus on what is communicated by what is left out of a linguistic phrase—e.g., the unused option when we say “I like ice cream” rather than that we “love” ice cream or that “Isaiah” likes ice cream; whereas corpus linguistics in linguistics cares about such omissions, corpus linguistics in service of identifying ordinary meaning ignores such subtleties.)
Second, Bernstein questions the actual database of English-language usage—i.e., the corpus itself—that legal interpreters have tended to use (and have advocated using) to determine statutory and constitutional meaning. Specifically, she notes that COCA (the Corpus of Contemporary American English), which collects language used in “fiction, popular magazines, newspapers, academic texts” as well as TV and radio programs, has been touted as reflecting ordinary, naturally occurring conversational usage—but in reality reflects professionally planned, edited writing or broadcast performances that differ markedly from unscripted everyday speech. Moreover, Bernstein points out, an emphasis on the COCA ignores the genre that is arguably most relevant to legal language—i.e., the language of legislators; thus proponents of corpus linguistics might be better served by advocating the use of a corpus based on the congressional record, C-SPAN recordings, and committee reports, in lieu of one based on talk shows and the like.
Relatedly, Bernstein argues that the use of corpus linguistics in legal interpretation completely ignores legal context. Using specific case examples, she deftly shows that courts sometimes use corpus linguistics to ask the wrong questions—e.g., what a particular word in a statutory phrase means in everyday conversation rather than whether precedent dictates that the entire phrase has a specific legal meaning. Worse yet, she argues that courts sometimes use corpus linguistics to obscure legal judgment calls or to provide a false air of scientific certainty or neutral objectivity to their decisions. In this sense, the judicial use of corpus linguistics falls prey to some of the same problems as the judicial use of the canons of construction and other supposedly neutral interpretive tools, as I and others have written about elsewhere.
Bernstein ends by offering some suggestions for how legal scholars and practitioners might use corpus analysis, not to determine how legal terms appear in non-legal language sources, but to determine how legal language is typically structured and how it compares to the language of other genres.
Ultimately, Professor Bernstein’s article is remarkably insightful and valuable—both for its careful explanation of how corpus linguistics in linguistics works and for its detailed analysis of the limitations of various specific corpora, as well as its insights on where judicial use of corpus linguistics has gone wrong. The article is a must-read for anyone who wishes to understand what exactly corpus linguistics is—and its limitations as a tool of legal interpretation.
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.
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
(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/
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.” 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.
Cite as: Steve Gold, Taking Law’s “v.” Out of Environmental Policy Science (Again)
(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/
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.
Just a quick warning—Armando Lara-Millán’s Redistributing the Poor: Jails, Hospitals, and the Crisis of Law and Fiscal Austerity is a depressing read, particularly, for those of us who have, at some time in our poverty law careers, litigated class actions. It’s not as if we did not know, when, for example, negotiating compliance benchmarks for institutional defendants (jails, public housing agencies, welfare departments, public hospitals…), either that the purpose of those benchmarks could be easily evaded or that our lawsuit might result in pulling resources away from another need. But knowing this abstractly, and earnestly planning against it, is one thing and reading a book that exquisitely describes how legal pressure often does little more than redistribute pain, is an entirely another.
Lara-Millán is a sociologist. In Redistributing the Poor, he challenges fundamental narratives at the heart of a significant branch of socio-legal scholarship. He suggests that the overarching recent U.S. historical narrative that many of us assume is true–that we are seeing the results of “overinvestment in criminal justice and underinvestment in public health”—fundamentally misunderstands the way the United States governs the poor. “In short, the idea of redistributing the poor draws attention to how states agencies circulate people between different institutional spaces in such a way that generates revenue for some agencies, cuts costs for others, and projects illusions that services have been legally rendered.” (P. vii.)
Millán conducted his fieldwork in two locations–the intake section of a jail and the waiting room of a public hospital. He watched as staff in these spaces sorted human beings into formal and informal administrative categories – gang member, person in need of mental healthcare, level 3, level 4, real criminals, welfare seekers, drug seekers, and more. In addition, he dug deep into local archival material – giving us access to the day-to-day bureaucratic decision-making and budgetary constraints that led to the human sorting he observed. The book is deeply-researched, provocative, and persuasive, and I imagine it will shake the waters of settled ideas in Lara-Millán’s field. For legal scholars who read and write in those socio-legal spaces, it is essential reading.
But for this jot I want to focus, through a description of just one example, and on what Lara-Millán teaches us about the ways in which, in an age of fiscal austerity, administrative compliance with legal mandates can result in little more than the disappearance and reallocation of suffering.
I’ll begin with one thing Lara-Millán observed while watching staff process human beings from arrest into the jail’s many housing categories. From the perspective of those who are responsible for this task, one of the biggest threats comes from those who either “shut down” becoming non-responsive to orders or “act up” during the process by “yelling, cursing, screaming, fighting, getting out of line, disobeying staff direction, refusing to cooperate, and otherwise causing a commotion during the processing.” (P. 49.) These incidents disrupt the smooth flow of intake. To solve this problem, deputies call on nursing staff who administer “psychotropic drugs, pain medication, and mixes of sedatives ….to ensure the machine-like flow of the intake process.” (P. 49.) The results were two-fold. Efficiency was enhanced, and the targeted inmates received a “medical mark” in their files, making it more likely, at least in the short term, that they would be processed in medical housing in the jail.
Lara-Millán makes three separate and persuasive arguments to explain what he observed. First he argues that this “solution” was an administrative resolution of two unrelated progressive legal pressures; second that austerity meant fundamentally that, despite legal pressure, the jail did not and would not have enough space in medical housing to meet the real need, and third that to resolve these competing pressures, the administration invested what little resources they had not primarily into avoiding violence and providing care but instead into feigning legal compliance.
The progressive legal pressures at play, brought about by a series of federal investigations and civil rights litigation, targeted two separate harms: excessive force incidents and the failure to provide mental health care. The administration of medication and subsequent medical marking became a way to solve both problems. It lowered the rates of excessive force and demonstrated the provision of care. On the face of it, legal compliance is achieved. But that left administrators with an additional problem. There simply were not enough medical spaces in the jail to actually meet the demand for mental health services. Those processed in at intake had to be processed out, to make space for others who disrupt the administration of the jail. As we watch administrators solve that problem, what becomes clear is that the emphasis is not really on the provision of care. Instead, administrators place emphasis on feigning compliance through the processing of inmates into and out of the medical category. As Lara-Millán discovers, as the jails came under increasing pressure to meet mental health needs, it received significant funding for that purpose, funding that was pulled, by the way, from community mental health. But these resources did not really go to meeting therapeutic needs. Instead, “the newly hired personal [sic] for medical and mental healthcare were almost entirely made up of security and processing personnel not therapeutic personnel.” (P. 83.) These processing personnel “were tasked with continuously upgrading and downgrading inmates between the limited medical spaces and general population spaces of the jail” (P. 84), thus resolving the issue of the limited space. In the end administrative emphasis is focused not so much on the progressive goals—avoiding harm and providing care—but on administering categories that redistribute both human beings and the harms they suffer.
This example, and the many others in the book, raise profound questions about the efficacy of progressive legal reform. Lara-Millán’s task is not to solve this problem, but that hardly relieves the pressure on those who do pursue legal reform to wrestle with its implications. And that, of course, is just one reason why everyone interested in poverty law should read this book.
Hana E. Brown, Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States
, 85 Am. Soc. Review
776 (2020), available at SAGE
The Indian Child Welfare Act (ICWA) is under attack, and legal scholars (including me) have written much about it. But being lawyers, we typically focus on judicial decisions, and within that set, on decisions with precedential impact. That makes sociologist Hana Brown’s Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States a welcome intervention. By examining the different ways that social workers, state courts, and federal judges apply ICWA’s “Indian child” definition, Brown provides valuable insights not just on ICWA, but on race-making generally and the importance of institutional context in translating law into practice.
To be covered by ICWA, a child must be an Indian child as the statute defines it. The definition rests on tribal citizenship: a child must be either enrolled in a tribe, or be eligible for enrollment and have a biological parent who is enrolled. 25 U.S.C. § 1903(4). But social workers and courts have applied the definition through a racial lens and excluded children from coverage because they were not racially Indian enough. Exclusion denies children, families, and tribes ICWA’s protections for family preservation and tribal sovereignty.
Brown’s examination reveals two key insights. First, although all three institutions often apply racial rather than citizenship-based definitions of Indian child, they have defined racial Indian-ness in different ways and for different reasons. Second, although Brown does not discount the role of racial ideology in this “race-making,” ideology did not explain the differences she found between the institutions. Instead, Brown identifies three other differences that shaped the Indian child determination: first, evidentiary standards, second, record-keeping requirements; and third, incentive structures.
The section on state caseworkers will be most interesting for legal scholars. Although such caseworkers are the frontline ICWA agents and the most influential institution in determining whether and how ICWA is implemented, studying their work poses challenges. First, access to records is limited to protect privacy. Even if records were available, deciphering who—out of the millions of children involved in child welfare cases each year—should have been identified as an Indian child but wasn’t is a nigh impossible task. Instead of taking it on, Brown analyzed and coded child welfare agencies’ annual reports and strategic plans, fifty assessments of ICWA implementation between 1979 and 2015, and extensive documents produced by the 2013 Child Welfare Truth and Reconciliation Commission, as a joint project between the State of Maine and five Wabanaki tribes.
This examination reveals that rather than inquire into tribal citizenship, caseworkers often followed a phenotypic definition of Indian-ness in determining whether ICWA applied. If a child “looked” Indian (e.g., had brown skin, dark straight hair, and dark eyes) they would inquire into tribal enrollment. If they did not, they would not. (Caseworkers and observers often raised the example of the blond-haired, blue-eyed child, but many other phenotypic combinations might not look Indian to outsiders.) This kind of assessment likely resulted in wrongful classification of many children. The Maine-Wabanaki Commission found that half of ICWA-eligible children were misclassified, while another study found that the San Francisco child welfare agency missed at least 200 ICWA-eligible children between 2002 and 2012.
Although the caseworker definition of Indian-ness emerges from the popular conflation of race and phenotype, it became dominant because of the institutional in which context caseworkers operate. First, as to evidentiary standards, social workers must make numerous decisions with relatively few bright line rules. Significant weight is placed on their judgment and expertise, and the need to act rapidly to protect children’s welfare leaves little room for extensive oversight of these decisions. This discretionary evidentiary standard, Brown argues, encourages the kind of “common sense” determination of Indian-ness according to appearance.
Second, caseworkers were not usually required to keep records of how or why they determine a child is or is not Indian. Until the early 2000s, only six states required caseworkers to even note whether the child qualified for ICWA. Even those generally required only a yes or no answer, creating no obstacle to decisions based on appearance.
Third, Brown found, the incentives facing social workers counsel against inquiring into ICWA eligibility. Determining tribal enrollment and complying with ICWA require additional time and paperwork from overburdened caseworkers. What is more, federal law incentivizes keeping children within the state system and placing them outside the home of origin, results that ICWA may prevent. The 1997 Adoption and Safe Families Act (ASFA) promotes adoption of children from the child welfare system, providing states with $4,000 to $6,000 for each adopted child, upwards of $20 million a year. Observers identified this incentive structure as one reason why South Dakota, with physical and sexual abuse rates lower than the national average, removed children from their homes at three times the national rate. Relying on a racial rather than citizenship-based definition of Indian status expedited South Dakota’s removals for Indian children.
Brown also tracks the impact of shifting incentives for caseworkers. Lobbying by Alaska Native leaders, for example, led to an Alaska Tribal Child Welfare Compact that creates incentives to transfer cases to tribal child welfare systems to free up money and time for other cases. San Francisco also altered incentives by doing monthly checks that require caseworkers to do extra paperwork if they do not initially identify tribal children appropriately.
Brown found that while state court judges also distorted the Indian child definition, they employed a different form of race-making. Rather than rely on what they thought Indians should look like, they turned to cultural essentialism, relying on what they thought Indians should live like. Under what is known as the existing Indian family exception, many courts decided that the statute was not intended to apply to children who were not part of what they saw as an Indian family. Courts refused to apply ICWA because children had not lived on reservations, were not conversational in indigenous languages, or attended Christian churches rather than following Indigenous religious practices. As anyone familiar with federal Indian policy knows, these qualities describe many tribal citizens today, in part because of concerted efforts to move Native people off reservations and quash Native languages and religions.
There are some weaknesses to this section. The methodology Brown used yielded mostly cases from states that adopted the existing Indian family exception, and misses many cases from the larger number of states that rejected it. But the analysis still yields helpful insights. As to evidentiary standards and record-keeping, judicial obligations to issue public, written decisions justified under existing statutes and precedent discouraged the simple reliance on phenotype employed by some caseworkers.
The discussion of state court incentives is the most interesting. Because ICWA may require transfer of cases to tribal courts, the desire maintain judicial authority incentivizes judges to find that ICWA does not apply. But this same effect may encourage courts to find that ICWA does apply in order to lighten heavy dockets. The Maine-Wabanaki Truth and Reconciliation Commission, for example, found that judges were generally not resistant to transferring cases to tribal court. Brown also reports that tribal advocacy with states has changed the incentives. This advocacy has led to adoption of 39 tribal-state agreements and 37 state statutes regarding implementation of ICWA, most clearly rejecting the existing Indian family exception. The relationships built through this advocacy have also shifted state judge beliefs that tribal jurisdiction should be resisted because tribal courts are incompetent or unjust.
The discussion on federal courts will be most familiar to legal readers, and focuses mostly on high-profile cases such as Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), and the trial court decision in Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018), rev’d sub nom. Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), aff’d in part and rev’d in part, Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021) (en banc). More novel is the discussion of the different incentives facing state and federal courts in these cases. Federal court judges do not implement ICWA, so the cases before them generally question the statute generally, and federal judges are relatively isolated from external pressures. For these reasons, Brown finds, their race-making is more explicitly tinged with ideological perspectives.
Altogether the piece is a fascinating study of the different ways and places that race is defined and assigned, along with the factors beyond ideology that influence whether and how laws are implemented. Legal scholars in many fields will find lessons within it for their own work.
Cite as: Bethany Berger, Institutions, “Indian-ness,” and ICWA Implementation
(September 17, 2021) (reviewing Hana E. Brown, Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States
, 85 Am. Soc. Review
776 (2020), available at SAGE), https://lex.jotwell.com/institutions-indian-ness-and-icwa-implementation/
In Global Southerners in the North, Ama Ruth Francis offers a new theoretical angle on the long-standing and crucial question of how to mobilize popular opinion and legal power on behalf of migrants who lack political voice. Her contribution decenters the state as the key actor in international law, and suggests instead that scholars concentrate on individuals and sub-state spaces. Focusing on climate change migration, Francis suggests that the way to address the severe power asymmetries between those responsible for and those most impacted by the changing climate is to reconceptualize the Global South to include all people and spaces rendered expendable by racial capitalism. She builds on the Third World Approaches to International Law (TWAIL) literature to argue that international law should be theorized as a shared commitment that can be furthered by political agents – in other words, that states are not the only actors capable of creating international law.
Francis begins her analysis by noting that the Global South is not a monolithic bloc; there are vast differences across and within states. For example, among the BRICS nations (Brazil, Russia, India, China, and South Africa), China is a major emitter even though it remains part of the Global South. Moreover, within states in the Global North and the Global South, racial capitalism creates significant gulfs between rich and poor that underlie disparities in both emissions and community resilience in the face of climate change. She describes the TWAIL literature on international environmental law that discusses the history of colonial expansion and domination linked to environmental degradation, and explains how this project of global economic inequality was justified and continues to be bolstered by international law.
Francis underlines the importance of this groundwork, but suggests that the Global South should be defined by material conditions rather than geographic terms, a move that encompasses individuals and sub-state spaces. Drawing from Balakrishnan Rajagopal’s framing of the Global South as a contestation of power formations, she suggests that we can think of the Global South as deterritorialized political practice that creates space for counterhegemonic discourse. Francis describes these Global Souths in the north as racial capitalism’s externalities, highlighting the glaring expendability of some individuals and spaces in the climate change context, and noting how those distinctions are drawn on racial grounds.
Though Francis is perhaps more sanguine than I am about the promise of international human rights law, and in particular of the Teitiota decision, she demonstrates ably the ways in which climate migration highlights the limits of that body of law. Despite obligations to protect individuals’ human rights regardless of immigration status, we see expendability drawn along racial lines. Francis explains that human rights law is incapable of enforcing the rights of climate migrants because such a step would require calling out Global North responsibility for climate change.
To bridge that gap, Francis suggests a transnational alliance of Global Southerners as political agents with the capacity to shift international law. Drawing from Harold Koh’s transnational legal process theory, she explains that “international law is constituted through a dynamic interplay between domestic and international legal norms, and those domestic norms are created through domestic political processes.” Francis argues that Global Southerners in the North can leverage rights discourse to begin to shift international legal norms through domestic legal processes. I would add that they might even start to frame climate justice measures as duties, perhaps drawing on the right to solidarity. Francis suggests measures to operationalize the theory, including climate action in domestic courts, transnational advocacy efforts, and drafting domestic legislation. In other words, rather than invoking international law in domestic courts, she makes the case for transnational coordination of domestic climate efforts as a means of reforming international legal standards over time.
Francis offers an interesting and creative route forward for climate migrants seeking redress under international law. This article strikes me as a promising first step in a broader research agenda. A follow-on article, for example, could engage in more detail with both the idea of Souths and Southerners in the Global North as well as Norths and Northerners in the Global South. It could also expand on the operational component: if the Global North is defined as the defense of global capitalism and economic inequality, how do we identify the actors opposed to that approach and what steps can be taken to mobilize a unified political voice amongst them? Perhaps most importantly for this readership, Francis offers a role for scholars in identifying, describing, and uplifting the role of social movements in shaping not just legal discourse but also international law and policy.
Madison Condon, Externalities and the Common Owner
, 95 Wash. L. Rev
. 1 (2020), available at SSRN
At Chevron’s 2020 annual meeting, a majority of voting shareholders approved a resolution urging the oil giant to bring its lobbying efforts in line with the Paris Climate Agreement’s goal of limiting global warming to two degrees Celsius. What seemed like a pipe dream not long ago has become a fixture on Wall Street. Climate activism has emerged as a dominant theme at shareholder meetings in the energy sector and beyond, with some resolutions receiving nearly sixty percent of votes. In her excellent article, Externalities and the Common Owner, Professor Madison Condon draws on modern portfolio theory to offer an intriguing explanation for the changing tide in shareholder climate activism.
In recent years, concerned shareholders have garnered majority approval for resolutions calling for corporate emission reduction targets, better disclosure of climate risk, and suspension of lobbying against carbon regulation, among other climate action – often against the vocal opposition of the company’s own board. This surge in shareholder support for climate-related proposals is likely the product of a multitude of factors, including the growing sense of urgency surrounding global climate change. Professor Condon makes a compelling case that a key driver of shareholders’ newfound love for climate activism may be a paradigm shift in the approach of institutional investors to corporate governance.
Along the way, Professor Condon incisively slaughters not one, but two sacred cows of the corporate governance literature. First up, the general assumption that rational shareholders will exercise their governance rights to maximize the firm’s value. Condon persuasively lays out the inherent conflict (at least in the near term) between the corporate objective of profit maximization and a shareholder-driven commitment to voluntary emission reductions, even more so when such a commitment is to be adopted by carbon majors like Shell, Total, or Chevron. The second bovine casualty of the article’s sharp analysis is the widely held belief that broadly diversified institutional investors are “rationally reticent” to invest their time and effort in corporate governance. After all, portfolio diversification tends to produce relatively small stakes in individual companies so the significant costs of shareholder engagement would translate to only small returns to the diversified investors’ portion of ownership. And yet, recent proxy seasons offer ample evidence of climate activism by pension funds, insurance companies, mutual funds, and other institutional investors bullying big oil and other carbon majors into climate action. So what gives?
The answer flows indirectly from Einer Elhauge’s observation that the proliferation of institutional investment has reduced market competition as key companies are increasingly owned by the same large shareholders. Since 1950, the share of institutional ownership in U.S. equities has grown from little over 5% to nearly 80%. Today, there is a more than 90% chance that any two competing firms in a given industry share at least one large shareholder that holds a stake of five percent or more in both companies – a more than fivefold increase compared to 1994. As Elhauge and others hone in on the anti-competitive effects of such “horizontal shareholding,” Professor Condon adds a novel climate dimension to the discourse.
Externalities and the Common Owner crafts a compelling argument that BlackRock, CalPers, Vanguard, and other “universal owners” have a strong financial incentive to advance corporate governance that will “mitigate climate change risks and damages to their economy-mirroring portfolios.” These broadly diversified institutional investors are willing to accept the negative short-term impacts of climate activism on the bottom line of individual firms if their engagement helps reduce systemic climate risk sufficiently to avert, or at least mitigate, damage to their other portfolio holdings. To illustrate this paradigm shift from the traditionally firm-centric to a portfolio-maximizing shareholder governance strategy, Professor Condon cites to several investor declarations revealing a growing emphasis on portfolio returns. She also offers an intuitive back-of-the-envelope calculation comparing costs and benefits using William Nordhaus’s acclaimed Dynamic Integrated Climate Economy Model. Based on Condon’s math, a broadly diversified investor like BlackRock with significant stakes in Exxon and Chevron might lose over $6 billion by supporting shareholder resolutions that force a 40% reduction in the two companies’ greenhouse gas emissions. But these losses would be more than compensated by the nearly $10 billion in damages from climate change that the emission reductions would avert from the rest of BlackRock’s portfolio.
Having laid out the economics of institutional investors’ externality-internalizing strategy of portfolio maximization, Professor Condon surveys the various avenues for influencing corporate officers, from shareholder proposals and board elections to informal communication and compensation. Next, she explores how sacrificing individual firm profits and value in the interest of portfolio returns may violate fiduciary duties owed by both firm managers and investment managers. Against this background, Professor Condon translates her observations and argument into a convincing amendment of the traditional narrative of institutional investors’ rational reticence to exercise their corporate governance rights.
The final section of Externalities and the Common Owner explores some of the broader normative issues presented by the portfolio-maximizing strategy of diversified institutional investors. Professor Condon ponders whether the net welfare gains from climate and other pollution reduction benefits will be enough to outweigh the negative welfare impacts from reduced competition and monopsony pricing in labor markets. A separate line of inquiry explores challenges related to the democratic legitimacy and accountability of a small group of heavyweight investors privatizing the kind of environmental governance choices traditionally left to governments and their elected officials. The author concludes that “[t]he net welfare effects of common ownership require further study, but intuition suggests this behavior is not aligned with aggregate social welfare.” (P. 79.)
Whether your scholarly interests lie in corporate governance, climate policy, or anywhere in between, Externalities and the Common Owner is a must-read. Professor Condon provides a deeply thought-provoking account of the evolving role of institutional investors in the war on carbon, while charting an intriguing agenda for future research on the benefits and drawbacks of portfolio maximization approaches to shareholder engagement.