Shelley Welton, Clean Electrification
, 88 U. Colo. L. Rev.
571 (2017), available at SSRN
Climate change has made the timely decarbonization of the electric grid a top priority for policymakers in the United States and across the globe. In the absence of a meaningful price on carbon, net metering, tax credits, and other incentive programs dominate the low-carbon policy landscape. Critics of clean energy incentives have long argued that government should not engage in the business of picking winners and losers among competing technologies. With her thoughtful article, Clean Electrification, Professor Shelley Welton reminds us that public policy support for a low-carbon energy economy has disparate impacts not only on technologies but also on ratepayers, utilities, and other stakeholders.
U.S. policymakers increasingly seek to enlist ratepayers in the war on carbon, harnessing technology innovation to turn previously passive electricity customers into active partners in grid decarbonization efforts. This vision of a “participatory grid” rests on smart appliances, rooftop solar, energy storage, and other technologies capable of empowering ratepayers to more actively manage their energy consumption, generation, and other grid interactions. Access to these technologies and, hence, to the benefits of active grid participation, however, comes at considerable cost raising concerns over the vision’s implications for distributional equity, as evidenced by “solar fairness” debates across the country.
Professor Welton acknowledges and unpacks the various equity concerns surrounding the participatory grid, shedding light on the different stakeholders and their perspectives. In one of my favorite sections, she compares and contrasts the “distinct but overlapping equities” of climate law and energy law. Welton hones in on the disproportionately harsh impact of global warming, sea level rise, and other manifestations of our changing climate on lower-income households. Against this background, she makes a persuasive argument that, whatever the inequities of a decarbonized participatory grid, they do not justify a business-as-usual scenario as climate change itself will bring about far more serious inequities if left unmitigated.
Professor Welton’s article places the current equity debate into historic context, tracing energy law’s preoccupation with balancing equity and efficiency from the beginnings of public utility law all the way to present-day restructuring efforts. From this historical analysis, Welton distills “widespread access to affordable power” as energy law’s overarching distributive tenet. Nowhere is this commitment more apparent than in the Tennessee Valley Authority Act, the Rural Electrification Act, and other New Deal efforts to electrify rural America.
Eighty years ago, the New Deal’s electrification campaign raised the standard of living for rural communities and expanded their access to radios, refrigeration, and other amenities of modern-day technologies. Now, Professor Welton urges her readers, it is time for a successor campaign, clean electrification, to broaden public access not only to the grid itself but, critically, to the emerging suite of participatory technologies required to maintain access to affordable power in a de-carbonizing world. Welton identifies several openings in public utility regulation for a clean electrification campaign, including the long-standing mandate to maintain “just and reasonable” electricity rates and questions over ownership and management of the rich data produced by an ever-smarter grid. In the balanced thinking that distinguishes her article throughout, Welton cautions that widespread grid participation may not be achieved in the near term unless public policy moves beyond its current individualistic notion of participation to embrace more collective forms, such as community solar programs and semi-autonomous micro grids.
With Clean Electrification, Professor Welton adds to the emerging literature on clean energy equity a careful historical analysis of equity’s deep roots in energy law as well as a compelling argument for a concerted effort by policymakers, utilities, and others to usher in a low-carbon, high-participation energy economy. At a time when pundits polarize political debates over the future of net metering and other clean energy policies, Welton presents herself as a welcome voice of reason.
John H. Langbein, Absorbing South Australia’s Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion
, 38 Adelaide L. Rev.
1 (2017), available at SSRN
Yale’s Professor Emeritus John Langbein, who introduced the harmless error idea to will formality requirements a few decades back, returns to the place where it all began in Absorbing South Australia’s Wills Act Power in the United States: Emulation, Resistance, Expansion. It began, legislatively speaking, in South Australia. In 1975, South Australia’s State Parliament enacted a statute validating wills with formality defects so long as it was proved that the decedent intended the document to be her will. This “dispensing power” idea soon infected other common law nations, including the United States. Now, a new chapter is being written as a fresh trend emerges: making bequests via electronic technology.
Following a concise review of the common law world’s absorption of Australia’s innovation, sustained through legislative activity, case law, and scholarship, Langbein turns to “a completely unforeseen development – the enforcement of so-called digital or electronic wills.” (P. 1.) A harmless error in the execution of a will should not result in invalidation if there is convincing evidence that the decedent truly intended the document in question to constitute her will. A defect in the “line of sight” or “conscious presence” requirements for witness attestation, for example, ought not to invoke intestacy where other evidence convinces us that the decedent was trying to make a valid will. Today, we are beginning to see a new variety of technically deficient wills – paperless ones. Is the harmless error doctrine equipped to deal with digitized bequests? Or is a new framework for electronic wills necessary? Langbein deftly considers these important questions in this compulsively readable reprinting of a lecture he delivered in Australia in 2017.
The Uniform Law Commission recently created a drafting committee to respond to the phenomenon of digital testation. The Committee’s first drafting meeting memo neatly sums of the issue: Why not electronic wills? After all, “everything else is electronic.” Langbein concurs, noting that many individuals are so acclimated to digital forms of communication “that they seldom encounter sheets of paper in their daily lives.” (P. 9.)
Two variations of digital wills should be identified. In the first instance, an individual makes an electronic document with word processing software saved on a tablet, a phone, or a USB stick. In the second, a decedent has left either an audio or video recording of a testamentary plan; a DVD will. Although merely oral wills are invalid in most jurisdictions (and where they are recognized, they’re strictly limited to situations such as deathbed bequests), Langbein has collected a few cases holding DVD wills to be valid. True, a DVD disc might not be what we typically think of as a “document.” Yet it is a tangible form of the communication intentionally preserved so that its form survives its creation. And given the liberal construction given to remedial legislation such as harmless error statutes, a DVD could be treated as a kind of document.
With word processing wills, we’re on more familiar ground. Especially where the wording of the file strongly suggests testamentary intent (e.g., “This is my last will and testament”) and something akin to a signature can be located, the harmless error rule is comfortably stationed. Some states have legislatively endorsed electronic wills. In Nevada, testamentary bequests created and saved as an electronic record are valid. The statute, however, also imposes a new formality likely to foul up do-it-yourselfers: an “authentication characteristic” (which might be, for example, a retinal scan or fingerprint). Langbein notes: “It is particularly ironic that the dispensing power, which has opened the way to enforcing digital wills by excusing noncompliance with the traditional Wills Act formalities, is begetting new formalities.” (P. 11.) Harmless error begets digital wills which beget new formalities, which harmless error doctrine can excuse.
If a framework specifically designed for digital wills is appropriate, one of the more difficult issues to resolve will be revocation formalities. In traditional wills land, a will may be revoked either by a later will or by a physical act of revocation performed on the instrument itself, such as tearing or burning. The first category of revocations can be easily implemented with digital wills, but what of physical acts of revocation? “Suppose,” Langbein posits, “that the testator who has drafted a computer will erases it, but a software expert is able to recover from the text from the hard drive?” (P. 11.)
Professor Langbein’s article tracks the problems of these computer wills. He confesses, “I would be quite content if this intrusion into the accustomed patterns of testation were not happening.” (P. 11.) The frequency with which individuals attempt to make a testamentary disposition with digital technology will only increase, however. E-bequests will continue. Harmless error doctrine can – and is – handling some cases, but as the frequency increases, legislation specifically crafted for E-bequests will be inevitable.
Cite as: Tom Simmons, Dispensing (With) Electronic Wills
(April 5, 2018) (reviewing John H. Langbein, Absorbing South Australia’s Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion
, 38 Adelaide L. Rev.
1 (2017), available at SSRN), https://lex.jotwell.com/dispensing-with-electronic-wills/
Zachary Liscow and Quentin Karpilow, Innovation Snowballing and Climate Law
, 95 Wash. U. L. Rev.
385 (2017), available at SSRN
Innovation is a critical component of environmental progress. The dramatic reductions in emissions per-mile-travelled from automobiles over the past forty years stem from major breakthroughs like the catalytic converter. Our efforts to switch from fossil-fuel-based energy and reduce greenhouse gas emissions will depend on many different kinds of technological innovation. The dramatic price drops in both wind and solar energy, for instance, are in significant part the result of the development of new technologies.
How can environmental law facilitate the development of new technology to address the challenges of climate change and other environmental problems? The predominant position of economists has been that legal tools that force economic actors to address the full costs of their actions, including the externalities that are the basis of many environmental problems, is the appropriate approach to spur innovation. A carbon tax (or a tradable permit system which requires polluters to purchase their permits) will create incentives for firms and individuals to come up with new technologies that will reduce environmental problems. Liscow and Karpilow’s article challenges this dominant paradigm, drawing on recent significant economics research.
Yet policymakers have stubbornly ignored this advice from economists. For instance, in the 2009 stimulus bill instead of levying a carbon tax the Obama Administration put billions of dollars into subsidies and tax credits to support research, development, and deployment of new renewable energy technologies. Is this just a case of elected officials and policymakers ignoring the wisdom of economists, or is there something more going on here?
Recent research in economics has indicated that there may be something more going on. Led by Daron Acemoglu at MIT, a number of economists have concluded that in order to advance real technological progress to address environmental problems, market-based mechanisms like carbon taxes or tradable permit systems have to be paired with other policy tools, such as subsidies for research and development. The reason is that innovation is path dependent – what we research now, and what technologies we develop now, depends in large part on what research has occurred in the past.
Zachary Liscow and Quentin Karpilow spin out the possible implications of this research (what they call “innovation snowballing”) for legal efforts to address climate change. As they make clear, the implications extend far beyond the most basic question of whether subsidies in the context of research and development are a good policy choice. As it turns out, we might reconsider a range of policy and legal questions based on this research – for instance, even if we don’t use market-based mechanisms, we might nonetheless adjust the kinds of regulatory tools we use to react to climate change. In addition, there are a number of difficult questions about what kinds of research and development we might subsidize, as well as when, and how. For instance, Liscow and Karpilow point out that we might want to focus our subsidy efforts on renewable energy technologies that are unlikely to have positive spillovers for the development of fossil-fuel technology as well. Biomass energy builds on (and can support further research in) related fossil-fuel combustion technologies, so we might not wish to provide significant support for it, as opposed to support for solar energy research, which has little or no overlap with fossil fuel technology.
Liscow and Karpilow are not the only ones who have engaged with these questions. Other scholars (both inside and outside environmental law) have explored whether market-based mechanisms are the best tool to advance technological innovation in the environmental context. Examples are David Driesen’s work and Margaret Taylor’s article in the Proceedings of the National Academy of Sciences noting that cap-and-trade programs appear not to boost innovation significantly. If there is a weakness in the Liscow and Karpilow paper, it is that the authors could have engaged more with this prior research. And some of the extensions that Liscow and Karpilow address – for instance, whether innovation snowballing should lead us to think differently about government procurement programs or investment in infrastructure – could have fruitfully engaged with some of the relevant cutting edge work in environmental law, such as Sarah Light’s work on military contracting and environmental policy, or Alex Klass’s work on energy infrastructure.
But the strength of Liscow and Karpilow’s article is the depth with which they explore the follow-on questions that the original innovation snowballing research prompts. That strength makes this article well worth reading for anyone thinking about legal and policy design in the context of climate change.
For those of us who are not engineers or programmers, magical results appear when we run searches in legal databases. However, we have little understanding of the machinations behind the ever-present e-wall. What kind of confidence can we have when the underlying structure of legal databases are hardwired with human biases? We must ask ourselves the question posed to then-Senator Obama and Senator McCain at a Town Hall Debate in 2008, “What don’t you know and how will you learn it?”
When I teach legal research, my students compare the same searches in different databases. One goal is to demonstrate that there are different results. But a more nuanced goal is to examine the results closely enough to provide insights into which databases might be more useful for updating, for case searching, for browsing statutes, and other research tasks. Susan Nevelow Mart’s study will elevate these discussions because of her focus on human-engineered algorithms and the inherent biases in the databases used for legal research. This study will also guide researchers to think more about search strategy and will help set more realistic expectations about search results.
Mart studied the impact of human judgment and bias at every step of the database search process. Her study explains how bias is hardwired into the human-engineered algorithm of each database. Add additional layers of human judgment and bias to the choice of database, to the date and time of the search, to the search terms, to the vendor’s classification scheme, and to the fact that searchers typically only browse the first 10 sometimes-relevant results. Mart introduces us to the concept of algorithmic accountability or “the term for disclosing prioritization, classification, association, and filtering.” Mart contends that algorithmic accountability, or understanding a bit more about the secret sauce in the inputs, will help researchers produce more accurate search results.
Mart’s research sought to test hypotheses about search algorithms by examining the results of the same searches in the same jurisdiction across six databases: Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw. When examining the relevance of the top 10 results, it is unsurprising that Lexis Advance and Westlaw lead in the relevancy rankings because they have the longest standing in the market. However, it is surprising that the top 10 results for those two vendors were relevant only 57% and 67% of the time, respectively.
Mart found that each of the six databases average 40% unique cases in the top 10 results. Mart also explores how many of the unique results are relevant in each database’s results. Again, it is unsurprising that Westlaw (at 33%) and Lexis Advance (at about 20%) lead in these two categories. It is surprising, however, that there are so many relevant cases that are unique results when the same search was performed in each database. And because we don’t know what is in the secret sauce, it is difficult to improve these outcomes.
There are a number of takeaways from Mart’s study. First, algorithmic variations lead to variations in the unique, and in the relevant, results returned from each database. Second, database vendors want us to have confidence in their products but it is still necessary to run the same search in more than one database to improve the chances of yielding the most comprehensive, relevant results. Third, while some of the newer legal databases yield less unique and less relevant results, they can bring advantages depending on the research topic, the time period, and other contextual details.
This well-researched and well-written article is required reading for every attorney who performs research on behalf of a client and for every professor who teaches legal research or uses legal databases. Because we often don’t know what we don’t know, Mart’s work pushes us to think more deeply about our search products and processes. Mart’s results provide an opportunity to narrow the gap in knowledge by learning a bit about what we don’t know. Learning from this scholarly yet accessible article brings the reader closer to understanding how to derive the optimal output even without knowing the ingredients in the secret sauce.
Cite as: Elizabeth Adelman, What Don’t You Know and How Will You Learn It?
(February 19, 2018) (reviewing Susan Nevelow Mart, The Algorithm as a Human Artifact: Implications for Legal [Re]Search
, 109 Law Libr. J.
387 (2017)), https://lex.jotwell.com/dont-know-will-learn/
In 2016, many thousands of Native people and their supporters traveled from across the country to protest construction of the Dakota Access Pipeline in North Dakota. It was the greatest display of unified Indian activism since the standoffs at Alcatraz and Wounded Knee. While Dakota Access set dogs on the protesters and North Dakota almost enacted a statute that would immunize those injuring protesters from liability, the federal government had a role as well. Because the pipeline ran over a section of federally-owned land, the U.S. had to grant an easement to build it, and needed to consider the impact on the Standing Rock Sioux, including sacred sites, drinking water, and treaty rights, before doing so. In the waning days of the Obama Administration, the EPA determined that it had not sufficiently considered all factors, and decided to delay the permit. In the first few days of the Trump Administration, the EPA reversed, ruling that the pipeline could go forward. After the pipeline was built (and already had its first leaks), a federal district court held that the U.S. had not sufficiently considered treaty rights and environmental concerns. But the court refused to halt the pipeline while considering the remedy, so gas continues to flow, and small leaks continue to occur.
As at Standing Rock, the federal government has tremendous power over the things most important to Native people. Five decades into the self-determination era, tribes still depend on the federal government to approve, regulate, or fund what tribes do with their businesses, land, natural resources, sacred sites, and police and social welfare services. The administration of this federal role is in these matters is far from the common law doctrines that occupy most Indian law professors. Not so for Professor Kevin Washburn. Washburn recently returned to academia after several years as the Assistant Secretary of Indian Affairs, where he struggled first hand with the factors governing federal decision-making. What the Future Holds: The Changing Landscape of Federal Indian Policy benefits from this experience with an unusually nuanced and informed perspective on the federal administration of the federal-tribal relationship.
From the founding era to today, Supreme Court opinions, statutes, and executive documents have referred to the United States as a trustee to Indian tribes. As Professor Washburn says, the implicit paternalism of this idea has always fit uncomfortably with the concept of tribal sovereignty, and particularly so in the modern era of self-determination. Washburn also notes that the Supreme Court has pared away at the legal power of the trust relationship, limiting the power of tribes to demand compensation for federal actions taken with conflict of interests, or to subject the federal government to other common-law trust obligations.
But as the paternalistic rationale and legal enforceability of the trust responsibility has faded, Washburn argues, the trust responsibility has been transformed. The federal government is now less the manager than the “principal underwriter” of tribal affairs. Today, most services formerly performed by the federal government are managed by Indian tribes with federally-funded self-determination contracts. This shift has resulted in more effective, culturally appropriate, and profitable results for notoriously mismanaged programs. But it has also resulted in new questions about the role of the federal government.
First, some may ask whether the trust responsibility “to provide funding to tribes to meet federal responsibilities” can continue as the paternalistic elements of the trust responsibility diminish. For Washburn, the answer is “of course.” Washburn argues that federal funding can be seen as a moral “rent” on the lands and sovereignty taken from tribal nations, and this, rather than a paternal noblesse oblige was how Chief Justice Marshall originally conceived it. Because tribal administration of programs for Indians has been proven more effective and efficient than federal or state administration, it also makes fiscal sense. But Washburn notes that even in the face of statutory promises to provide funding, the United States has repeatedly failed to appropriate enough money to fulfill its promises. In response, however, the Supreme Court has developed a new norm strictly holding the government to its fiscal promises to tribal nations.
A larger question arises regarding oversight of tribal governments. The general policy of the federal government today is to avoid interfering with tribal sovereignty. This policy is enshrined in statutes and executive orders, and increasingly expected by tribal nations. But numerous statutes still require federal approval for tribal projects, and the federal government can use this power to delay or shape negotiations so as to favor mining and other interests contracting with tribes. The federal approval power, even when it is not subject to conflicts of interest, adds time and expensive regulatory review to tribal actions. Washburn notes that there is a powerful case that this oversight is inconsistent with self-determination and tribal welfare.
At the same time (and this is one of the unique contributions of the essay), Washburn suggests that increasing tribal self-determination may argue for more federal oversight, not less. First, as we know from Spider-Man, with great power, comes great responsibility. Tribes increasingly have real power over peoples’ lives. In some cases, Washburn speculates, this leads to greater federal accountability.
Despite this, he argues, the need for increased federal oversight may be less compelling that it appears. He investigates three distinct areas of concern.
The most prominent is the headline-making disenrollment of tribal members by some tribes. Washburn notes that although some characterize this crisis as a battle over gaming revenue, those who do so are likely unaware that “at least since the arrival of the Europeans, tribal politics has been a blood sport.” In addition, to the extent that these are battles over gaming revenue, they are battles over a tribe’s own money, and so the case for federal accountability is less than it was in cases like Santa Clara Pueblo v. Martinez, the case that originally established the non-interference rule. Nevertheless, he notes, to the extent such disenrollment violates human rights norms, there may be a case for intervention similar to that for any nation violating human rights.
Washburn also investigates the case for greater intervention in tribal criminal justice systems. One of Washburn’s most important scholarly contributions before entering government service was in making the case for stronger tribal control in this area. Washburn now argues that the push for more tribal law enforcement power comes more from “activists” (and, he doesn’t mention, scholars) than from tribal leaders. Washburn’s original articles contributed to a movement that resulted in recent federal statutes and policies increasing tribal powers of prosecution and punishment. These statutes, however, impose greater federal oversight as a condition of exercising more power. “To exercise greater sovereignty,” Washburn now writes, tribal governments “necessarily must accept … outside interference by the federal government.” The article does not make clear whether Washburn believes these “political compromises” are a good thing or not, but does suggest that his time in power may have softened his prior scholarly stance.
Finally, Washburn discusses an area that has not gained as much public attention: the federal government’s role in land regulation. This is perhaps the most direct instance of the federal trust responsibility, as the federal government still actually owns most of Indian country in trust for either tribes or individual Indians. Washburn notes that the federal trust, and the regulatory apparatus that comes with it, actually reduce the value of land, perhaps a conflict of interest for the trustees. (Incidentally, one of the many contributions of Washburn’s tenure was in lessening this regulatory burden.) Individual allottee interests in free use and alienation of their land may also conflict with those of the other trust beneficiaries, the tribes. Like Jessica Shoemaker’s work (reviewed by Ezra Rosser in Jotwell), Washburn opens a new window into the reality of the trust status of Indian land.
Altogether, the strength of What the Future Holds is in providing new perspectives and asking hard questions rather than in providing answers. It also remains to be seen whether the Trump administration will undermine the new, less-paternalist trust relationship Washburn identifies. My guess is that it may lessen immediate support for tribes, particularly in areas where mining interests and red states argue against tribes, but that the administration’s attention span is too short to significantly change the trajectory of federal policy. But Washburn has identified important things for scholars to think about as we try to influence what the future holds, both for tribal nations and for those they govern.
Ming Hsu Chen, The Administrator-in-Chief: The President and Executive Action in Immigration Law
, 69 Admin. L. Rev.
347 (2017), available at SSRN
Professor Ming Chen’s Administrator-In-Chief: The President and Executive Action in Immigration Law is an ambitious effort to peer inside the relationship between a president and administrative agencies. It is the executive branch equivalent to the legislative sausage. Professor Chen concludes that a president is on strongest footing when he “promot[es] practices of good government in agencies rather than trying to substitute his policymaking judgments for those of the agency.” (P. 359.) The article emphasizes that the president should focus on his control over three things: (1) coherent federal policy; (2) centralized agency discretion, ensuring consistency, and (3) coordinating actions across all agencies. The article concludes that procedural choices matter; the president should work hard to set a procedural example and to use his influence to encourage procedural choices that will strengthen the legitimacy of policies. Professor Chen argues that the normative justifiability of presidential policymaking rests on whether the president is promoting coherency, consistency and coordination.
While three case studies from the Obama Administration’s approach to immigration law guide the article’s analysis, the analysis includes lessons for any president. In developing these case studies, Professor Chen conducted interviews with government officials and immigration advocates. The subject of the first case study is President Obama’s use of agency guidance documents to announce the Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans (“DAPA”) policies. The second case study focuses on President Obama’s attempts to set removal and detention priorities. Professor Chen walks us through several incarnations of enforcement policies that attempted to express President Obama’s priorities for detention and removal. These policies called on local law enforcement to share information about individuals with federal immigration agents and to detain individuals while waiting for federal immigration officials to travel to a jail to take custody of an individual. The third case study examines the Obama Administration’s efforts to respond to a surge of asylum seekers at the Mexican border.
These case studies reveal the extremely complicated nature of the immigration bureaucracy. Not only is the organizational chart complex, but the dispersion of immigration functions makes achieving coherency, consistency and coordination an awesome challenge. The immigration bureaucracy not only consists of three separate entities within the Department of Homeland Security (Customs and Border Protection, Immigration and Customs Enforcement, and United States Citizenship and Immigration Services), but the Department of Justice, the Department of State, and the Department of Labor each play roles as well. Each agency has its own mission and culture. The reality is even more complex, though, as Professor Chen’s research reveals competing cultures within agencies. Professor Chen describes different cultural forces at work within Homeland Security and also the challenges President Obama faced in fighting ingrained agency culture. The amount of inter- and intra-agency coordination and massaging necessary to change course is mind-boggling. Professor Chen’s article reminds us that no matter how difficult, this type of management can be crucial, and the president is in the best position to do it.
For DACA and DAPA, Professor Chen concludes that President Obama “somewhat succeeded in promoting a coherent system of enforcement practices.” (P. 411.) Both DACA and DAPA aimed to create a coherent policy of how the executive branch would exercise its prosecutorial discretion. Two things stood in the way and rendered the effort only somewhat successful, according to Professor Chen. First, the President faced strong headwinds in the form of agency cultural resistance to the policies. Second, in the case of DAPA, the procedural choice to use a guidance document instead of notice and comment rulemaking factored into the policy’s legal downfall. For both the detainer policies and the response to the surge in asylum applicants at the border, Professor Chen relays failures of coherency, consistency and coordination. According to Professor Chen, procedural missteps greatly contributed to those failures.
Professor Chen deserves a lot of credit for taking on this project. Her valuable insights allow us to peer into the relationship between President Obama and immigration agencies. Her article also serves as an important bridge between immigration law and administrative law generally. She ties specific immigration law case studies to larger administrative law issues, including the president’s proper relationship with agencies. Her detailed explanation of the immigration bureaucracy and the cultural challenges within it on their own are significant contributions. The article’s ambition, however, is also its soft spot. This is a very dense article that attempts to accomplish much and sometimes gets in its own way by attempting to touch on too many related topics. This left me, at times, unsure of the article’s main focus. On some points I was unsatisfied. For example, the article mentions the ongoing debate about the legitimacy of the administrative state, but left me without a clear explanation of how the call for greater attention to the president’s procedural power fits into that debate. Also, I believe that Professor Chen intends for her focus on procedure to be solely normative, but I am not sure and I would like to know where she sees the existing legal boundaries.
What is clear, however, is Professor Chen’s call for the president to be a staunch defender of procedure who encourages coherency, consistency and coordination across the executive branch. She makes suggestions for how a president can better achieve those goals and her case studies provide important lessons.
Cite as: Jill Family, Procedure Matters
(November 30, 2017) (reviewing Ming Hsu Chen, The Administrator-in-Chief: The President and Executive Action in Immigration Law
, 69 Admin. L. Rev.
347 (2017), available at SSRN), https://lex.jotwell.com/procedure-matters/
Susannah Camic Tahk, The New Welfare Rights
, Brooklyn L. Rev.
(forthcoming 2017), available at SSRN
Professor Susannah Camic Tahk’s newest article is a welcome and optimistic read that opens space for future work (re)constructing the idea that the poor have rights. The New Welfare Rights has much to offer scholars and advocates alike, showing that the poor have under-appreciated rights as taxpayers or as recipients of tax-based benefits. This is an important contribution because it shows the continued possibility of claims framed in terms of “rights” even in the aftermath of welfare reform.
The New Welfare Rights begins appropriately by presenting the rise and fall of rights-based claims to welfare. As Professor Tahk highlights, rights-based claims enjoyed a brief moment in the sun, but the Supreme Court stepped back from the promise of Goldberg v. Kelly, with a series of holdings—Professor Tahk focuses on Dandridge v. Williams and Eldridge v. Matthews—hostile to the idea that the poor have a right to public support. Professor Tahk explains, “After these cases, lawyers working on issues pertaining to government benefits and rights hit a wall.” (P. 12.) So far, this is not exactly new territory. Martha Davis’ masterful history of the rise and fall of welfare rights in her book Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993) is the leading account but numerous other articles and books tell a similar story. With only a few exceptions, most scholars and advocates generally accept the notion that the Courts are not receptive to arguments that the poor have rights. Somewhat less strongly stated, in today’s environment it is understood that existing recognized rights are vulnerable and the list of rights is not likely to be expanded through litigation. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 or Welfare Reform Bill, which explicitly stated that welfare was not an entitlement, is treated as final proof that the law has slammed shut on the poor.
What makes The New Welfare Rights so helpful is it shows that such pessimism might not be entirely merited. Following welfare reform, welfare rolls plummeted and did not rise after start of the Great Recession, but tax benefits to the working poor took off. With bi-partisan support, poor support morphed from welfare claims made by individuals, especially poor mothers and children, into money claimed by the working poor who file tax returns. This transition and the rising importance of the Earned Income Tax Credit (EITC) can rightly be critiqued for moving from a program geared towards supporting individuals as people or as citizens to a system of aid that values only people as workers. But as Professor Tahk shows, the move to provide assistance through the tax system “has opened the door to a new set of rights, the same rights that any taxpayer has.” (P. 5.) Post-welfare reform and after the Supreme Court turned away from Goldberg, state constitutions and state courts have been seen as a possible way for the poor to have their rights recognized. By showing the ways in which the poor, as taxpayers and as tax filers, have rights that are under-appreciated by advocates who focus solely on direct cash assistance, The New Welfare Rights creates space for additional rights-based claims on behalf of poor people. Professor Tahk notes, “Tax benefits come with rights. These rights accrue to poor recipients of tax benefits much as they do to wealthy individuals or businesses who obtain subsidies through the tax code. These rights arise from participating in the tax system.” (P. 26.)
I will admit I am not entirely convinced by Professor Tahk’s argument that the “tax-based welfare state does not operate along two tiers” and that “it presents a one-tiered vision of equal citizenship.” (P. 27.) A recent article by Professor Wendy Bach does a nice job attacking that argument and Matthew Desmond’s essay on the inequality connected to the mortgage interest deduction similarly challenges such a rosy view. But by highlighting the procedural rights that are part of the tax system, including those tied to the Taxpayer Bill of Rights, and connecting those rights to poor people (Pp. 35-43), The New Welfare Rights opens our eyes to ways in which to help the poor by leveraging rights built into the tax system. It is an article worthy of attention and is perhaps especially valuable to those of us who are skeptical about the government recognizing and responding positively to rights talk when it comes to poor people.
Kerry Abrams, Family Reunification and the Security State
(forthcoming, 2017), available at SSRN.
Many Americans believe that one of the functions of United States immigration law is to facilitate family reunification. For example, the idea that if a non-citizen marries a United States citizen that person can reside in the United States with their U.S. citizen spouse. Yet another function of U.S. immigration law is border control to protect national security. Consequently, if the United States government deems a non-citizen a security threat, regardless of their relationship to a U.S. citizen, that non-citizen could be denied entry to the United States. The relationship between these two immigration law functions—family reunification and national security—has varied throughout American history.
Kerry Abrams’ forthcoming article, Family Reunification and the Security State, provides a framework for understanding the “shifting and complex relationship” between these two immigration law functions. (P. 1.) Professor Abrams identifies three periods of U.S. history in which the relationship between these two immigration law functions has varied. During the age of the unitary family there was little tension between the two immigration law functions, and family unity was paramount. In the subsequent age of security, the State’s concern about national security threats increased and family reunification was subordinated to border control. We are currently in the age of balancing in which family rights are viewed as individual constitutional rights that must be balanced with the State’s interest in border control. The implications of these shifts are highly visible today as citizens challenge President Trump’s executive order limiting migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen based on their interest in family reunification.
The age of the unitary family was one in which the family was understood to be a single legal identity—that of the husband and father. During this time period the State’s interest in border control was limited. The State was primarily interested in “expand[ing] its borders and settl[ing] new territory.” (P. 4.) Viewing the family as a unitary legal entity, and allowing the migration of all family members, assisted the State in achieving this goal.
Professor Abrams notes that the even though transformations were taking place at the state level that undermined the idea of the unitary family, such as married women property acts, “the common law theory of marital unity was still so powerful that family unity was treated with extraordinary deference.” (P. 6.) Professor Abrams uses the story of Chung Toy Ho and Wong Choy Sin to illustrate the deference granted to the idea of the unitary family. Chung Toy Ho and Wong Choy Sin were the wife and child of Chinese merchant Wong Ham. During the era of Chinese exclusion laborers were excluded, but others like merchants could migrate to the United States. Yet federal law did not specify that merchants could bring their family members with them. Judge Deady of the United States District Court of Oregon heard their case and concluded that China and the United States could not have intended to prohibit merchants from bringing their wives and children with them when they could bring their servants. He noted that “[t]he company of the one, and the care and custody of the other, are his by natural right; and he ought not to be deprived of either, unless the intention of congress to do so is clear and unmistakable.” (P. 7.) Judge Deady concluded that Chung Toy Ho and Wong Choy Sin were admissible based on their familial relationship to Wong Ham.
The family unity principle at work during this time period did not provide migration opportunities for all families. This principle protected the family that was “married and monogamous.” (P. 7.) Yet for the families that were within the accepted conception of family, the idea of family unity was “strong enough to override serious government interests in border protection and immigration policy.” (P. 8.)
This presumption shifted during the age of security when the State’s interest in national security increased significantly. The age of security corresponds with post-World War I America—a time when there was significant suspicion of the foreign-born population. The plenary power doctrine was used to outweigh an individual’s interest in family unity in large part because “[a] spouse might not be just a spouse but a spy.” (P. 12.) In several cases the spouses of U.S. citizens were denied entry to the U.S. because they were deemed security risks.
Professor Abrams argues that we are currently in the age of balancing. Within the last twenty years, two developments ushered in this age. First, the constitutionalization of family rights, and second, less acceptance of the plenary power doctrine in its strongest form. These two developments have created a context in which an individual’s right to family life is legally cognizable and the State’s interest in border control and national security is appropriately reviewed by courts. While the plenary power doctrine has not died, it is much more “malleable and nuanced” today, which means that the State’s interest in national security does not automatically trump an individual’s right to family life. (P. 18.) Rather courts are increasing engaged in balancing the individual and State interests at issue. Professor Abrams concludes that “[t]he development of a modern family reunification right has occurred slowly but is now ripe enough to be poised for affirmative recognition by our courts.” (P. 25.)
The history that Professor Abrams provides is particularly timely as courts are faced with several challenges to President Trump’s executive order addressing migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Family members residing in the United States have challenged the executive order as a violation of their right to family life as family members are denied entry to the U.S. based solely on their nationality. In an age of balancing courts may provide more review of the executive order to balance the President’s concerns about national security with United States citizens’ interest in family reunification.
Alexander A. Boni-Saenz, Sexual Advance Directives
, 68 Ala. L. Rev.
1 (2016), available at SSRN
May an individual consent to sex in advance of incapacity (or intoxication)? Can an individual consent prospectively to intercourse? Should we only recognize consent given contemporaneously with the sexual act? These are straightforward questions which reside within core human needs and autonomy, yet few have considered them in the elder law context. Consensual sex has been explicated by juries, lawmakers, and scholars with practically endless variations, but a temporal dimension to sexual consent has not.
A sexual advance directive might read: “I hereby consent to vaginal intercourse with my spouse upon and during my incapacity.” Advance directives are statutorily authorized for healthcare. What about for sex? Professor Boni-Saenz makes a convincing case for answering “yes!” in Sexual Advance Directives. An individual facing dementia may want to continue to have sex with her partner even after dementia has diminished or destroyed her capacity. If prospective sexual consent is invalid, her partner would be guilty of rape for an act of penetration with her even if she had unambiguously extended pre-incapacity consent.
Individuals may want to grant prospective consent to sex for different reasons. As Boni-Saenz observes, “They might have an interest in enabling sexually fulfilling lives for their future disabled selves, in preserving important sexual identities or relationships, or in protecting spouses from criminal prosecution for rape.” (P. 4.) An individual’s right to have intimate relations with the person of her choosing is so fundamental that we should consider carefully whether the right should be suspended by dementia if the individual thoughtfully considered the possibility of incapacitated sex while she was still competent. The questions posed by Boni-Saenz get at the basic concept of self. If a present-self consents to a future-self’s sexual act, has the individual consented?
This kind of abstract problem might interest some, but it can also be framed in concrete terms. It is an important practical question: Should we recognize an individual’s attempt to consent prospectively to sex? If the question is framed as an individual right, it is difficult – but not impossible – to argue that the right should be denied persons with advanced dementia, traumatic brain injuries, a stroke, or senility.
These kinds of questions, though, as difficult as they are, are actually more problematic than they might initially seem. We tend to think of dementia or incapacity as a light switch, either on or off. The law treats incapacity in fairly absolute terms: one has capacity or one doesn’t. In reality, a loss of capacity almost always appears in gradations of grey, not as either black or white. While an “on or off” of incapacity is legally convenient, it is biologically inaccurate. Many individuals without capacity can articulate their desires. Moreover, sexual disinhibition is often undiminished by dementia.
Hypothetically, let’s say, I once had a client with a diagnosis of early onset Alzheimer’s. She delivered a directive to her caregivers for the time when she would lose capacity. She wanted, she told them, to enjoy replays of her favorite television program, Gunsmoke. She was sure that this would give her comfort as she lost the ability to articulate her wants. Inevitably, she declined and lost capacity. Her caregivers dutifully played Gunsmoke for her, but the tapes were distracting, even distressing, to her. She angrily complained that the words “all ran together.” I’ve been told that this is a common complaint for dementia patients. Closely-spaced television dialogue can become indecipherable and even terrifying to individuals with dementia. If the caregivers had been bound to continue to subject her to Gunsmoke reruns, my clients’ former-self would have, in effect, infringed on the autonomy of her present-self.
The same kind of quandary with a sexual advance directive is even more important – and disquieting.
Next, Boni-Saenz injects another problem. Along with advance directives, healthcare proxies are among the most commonly utilized tools for elder law attorneys. A healthcare proxy is a kind of durable power of attorney which appoints a surrogate decision maker over healthcare decisions. These instruments permit an agent, such as a trusted friend or family member, to grant – or withhold – informed consent in various medical situations if the principal has lost capacity. (The “durability” of a power of attorney refers to its effectiveness notwithstanding incapacity, a statutory reversal of common law agency principles.) Not uncommonly, a healthcare agent is faced with whether to terminate artificial means of life support on account of a terminal or vegetative condition of their loved one – whether to “pull the plug.”
If sexual advance directives are permitted to prospectively grant (or deny) consent to physical intimacy, then, by extension, sexual powers of attorney are also warranted. Vesting a trusted agent with the power to consent (or refuse) intimacy goes partway toward ameliorating the inherent problem of an advance directive; the difficulty of responding to unanticipated circumstances. With a healthcare proxy, an agent’s determinations can take account of evolving issues in ways that a static (and perhaps stale) declaration cannot.
In most cases, the named agent under a healthcare proxy will be a spouse or partner, with a successor agent named in the event of the primary agent’s unavailability; typically an adult child. Agents are named on the basis of occupying positions of trust and familiarity with the principal’s wishes. Spouses and children frequently fit the bill.
Now envision a husband-agent making the decision on behalf of his incapacitated wife-principal about whether to consent to have sex with him. He will – as agents often do – wear two hats. It’s the same conflict of interest scenario from numerous fiduciary cases, but of a particular kind heretofore unexplored by agency law, or criminal law, for that matter. And what if an adult child is the agent? Picture a daughter faced with the decision of sexual consent on behalf of her aged mother.
There’s much more in Sexual Advance Directives; it is highly recommended reading.
My very first law professor, Bob Ellickson, once said to my Torts class: “You know how law professors do empirical research? They sit in a room and think very hard.”
That was in 1984. A lot has changed since then, partly because of pioneering work by Ellickson himself. Since 2012, more than 500 law review articles have included the word “empirical” in their titles, and probably hundreds more – including every item in the most recent issue of the Journal of Empirical Legal Studies – report or analyze empirical data without titular advertisement. Many of these papers feature linear regressions or other complex statistical analyses aiming to tease out relationships between variables. Yet there remains much value in research that simply but rigorously informs us of what actually happens in the real world. Understanding environmental law, like understanding the environment, begins with observing. This Jot acknowledges the contributions of two recent articles that help us see.
Karen Bradshaw’s Settling for Natural Resource Damages explores a component of environmental law practice that, she persuasively argues, has received too little scholarly attention. Regardless of whether she correctly identifies the predominance of settlement as the reason for scholars’ indifference, she is unquestionably correct to observe that claims by governmental trustee agencies for natural resource damages (NRDs) – like most civil litigation – almost always settle. But how often? For what types of claims? For how much? These are the questions Bradshaw asks.
To find answers, Bradshaw takes the simplest approach imaginable. She asks the people who know. Through Freedom of Information Act requests, Bradshaw sets out to determine the number of NRD claims each federal trustee agency has settled under its particular legal authorities, the aggregate amount of damages those settlements recovered, and the distribution of recovery amounts. She acknowledges that the quality of her data is limited by the inconsistent and uncertain quality of agency responses to her information requests. Nevertheless, the data in Settling for Natural Resource Damages appear to paint a reasonably robust picture of most types of NRD settlements by federal agencies.
To her credit, Brashaw defines NRD claims broadly. She includes liability to federal land management agencies for damaging the resources they manage as well as the better-known NRD liability for hazardous substance and oil spills provided by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Oil Pollution Act (OPA, together with predecessor provisions of the Clean Water Act). As Bradshaw points out, the limited literature on NRD liability has focused almost entirely on CERCLA and OPA.
The results of Bradshaw’s inquiry, however, seem to vindicate earlier scholars’ emphasis. Federal agencies have settled more than 300 claims for damage to resources in national park units and national marine sanctuaries. These claims account for nearly half of the settlements in Bradshaw’s data set, but the reported combined value of those settlements is less than one percent of the total for all NRD settlements. The other ninety-nine percent came in settlements under CERCLA, OPA and the Clean Water Act.
Even excluding the outsize settlements of NRD claims related to the Deepwater Horizon blowout ($8.1 billion) and the Exxon Valdez grounding ($900 million), Bradshaw reports, the cumulative nominal value of federal NRD settlements under CERCLA, OPA and the Clean Water Act is nearly $1.4 billion. All that money is supposed to compensate the public for injury to, loss of, or destruction of natural resources, and is supposed to be used only to restore, replace, or acquire the equivalent of the resources harmed. How well have agencies’ settlement practices served the goal of obtaining appropriate levels of compensation? How successful have the federal trustees’ resource restoration efforts been? Should the tort-like NRD liability provisions of these statutes be emulated in addressing other environmental problems? How does the performance of non-federal trustees – which, as Bradshaw notes, includes some settlements that were subjected to withering criticism – compare to the performance of the federal trustees?
These are urgent questions. Settling for Natural Resource Damages makes no attempt to answer them, but invites efforts to do so. Bradshaw’s call for further research is well taken, in light of the scale of NRD settlements that she documents. That in itself is a significant contribution. In the world of NRD settlements, observing what’s going on out there is the first step in understanding what’s really going on out there.
James W. Coleman’s How Cheap Is Corporate Talk? observes a different aspect of environmental law practice. Coleman addresses the “regulator’s dilemma”: agencies must identify technically and economically feasible ways to meet statutory environmental goals, but their main source of information about technology and costs is the industry to be regulated – when the industry has obvious incentives to portray any regulation as infeasible and expensive. Coleman argues that one way to test the claims an industry makes to a regulator is by comparing them to what the industry tells its investors about the same regulatory risks – when the industry has obvious incentives to portray any potential regulation as no big deal. An industry’s “two-audience problem,” Coleman contends, can ease the regulator’s dilemma.
As Coleman acknowledges, it is hardly news that companies and trade associations facing potential environmental regulations (as well as many other actors in many contexts) talk out of both sides of their mouths depending on their audience. But Coleman strives to go beyond anecdote. He attempts a rigorous analysis to demonstrate this phenomenon in operation in a way that might be helpful to regulators, to investors, and to corporate counsel who give advice about statements made to both regulators and investors.
For his project, Coleman mines statements about a cleverly-selected instance of environmental regulation: EPA’s annual efforts to promulgate a Renewable Fuel Standard pursuant to the Energy Independence and Security Act of 2017. This rulemaking and statute, which underlie the notices at gas pumps that ethanol has been blended into the fuel, suit Coleman’s purpose for several reasons. The statute’s requirement for annual revisions to the Standard generates recurrent opportunities for affected industries to state clear views about the impact of proposed and final regulations in documents that are easily paired – comments submitted to EPA during the rulemaking process and Form 10-K disclosures released to investors. The number of affected companies is small enough for thorough review of the documents yet large enough to provide results amenable to statistical analysis. Perhaps most usefully, implementation of the Standard affects different industries differently. Increasing the market share of ethanol and other biofuels threatens the profits of petroleum refiners and allies but offers growth opportunities for agricultural producers and allies. Thus Coleman could observe, by reviewing more than 10,000 pages of documents, the way industries with opposing interests depicted the effects of the same rule in statements to both regulators and investors.
How, though, can the comparison be made? Simply counting contradictions will not do, for as Coleman understands, “[m]ost actors facing a two-audience problem are smart enough to avoid direct factual contradictions.” (P. 66). Instead, Coleman codes the substance of individual statements about the Standard’s impact. Essentially, he counts the number of arguments about the standard that each company made to each of its two audiences (in regulatory comments and Forms 10-K) about how the Standard would affect the company.
Coleman found that companies with dominant interests in petroleum predicted more negative impacts of the Standard, on average, in their regulatory comments than in their Forms 10-K (2.78 versus 0.78). By contrast, companies with dominant interests in biofuels predicted more positive impacts of the Standard, on average, in their Forms 10-K than in their regulatory comments (0.58 versus 0.21). Applying two straightforward statistical techniques, Coleman implicitly tested the null hypothesis that each of the two sets of comparable discussions were drawn from a population with the same mean number of negative or positive impacts. The observed differences were statistically significant (P < .004 by either test) for the companies with petroleum interests and barely not significant (.05 < P < .055 by either test) for the companies with biofuels interests. Thus Coleman demonstrates that with respect to the Renewable Fuel Standard, “oil companies warn regulators and reassure investors.” (P. 70.)
There are methodological issues. Despite Coleman’s efforts to ensure data quality, the taxonomy of distinct predictions of negative and positive impacts of the rule, and the assignment of individual statements to codes within that taxonomy, must to some degree be subjective. And it is not clear that counting arguments is the best way to detect the “exaggeration, ambiguity and omission” that Coleman correctly describes as the hallmark of assertions by intelligent actors facing a two-audience problem. Moreover, affected interests in environmental regulatory disputes surely make many statements about potential rules, targeted to both regulators and investors, outside of officially submitted comments and formal 10-K disclosures.
These quibbles do not denigrate the work’s contribution. By choosing a consistent and limited set of documents to compare, Coleman avoids any possible allegation of cherry-picking. Counting arguments may miss differences in tone and emphasis, but is unlikely to understate the contrast between a company’s pitches to regulators and investors. Coleman’s analysis confirms, in a systematic rather than anecdotal way, our intuition that regulated industry tells different stories to different audiences to suit different ends. His findings suggest that regulators and investors should keep saltshakers handy when hearing from an industry to be affected by a pending regulatory choice – including an industry that stands to benefit. The lesson bears demonstration, even during an Administration more likely to deregulate than to regulate.
Karen Bradshaw’s Settling for Natural Resource Damages and James W. Coleman’s How Cheap Is Corporate Talk? have relatively modest goals. These papers are not burdened with grand theory or elaborate statistics. Instead, they collect and present data to describe clearly phenomena that we know exist, but that we have comprehended only vaguely. They help us see.
Cite as: Steve Gold, The Real World, JOTWELL (August 18, 2017) (reviewing Karen Bradshaw, Settling for Natural Resource Damages, 40 Harv. Envtl. L. Rev. 211 (2016) and James W. Coleman, How Cheap Is Corporate Talk? Comparing Companies’ Comments on Regulations with Their Securities Disclosures, 40 Harv. Envtl. L. Rev. 48 (2016)), https://lex.jotwell.com/the-real-world/.