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Better Environmental Law from an Unlikely Source

For ‘tis the sport to have the engineer / Hoist with his own petard.
William Shakespeare, Hamlet, Act III Scene iv.

Happy is the litigator who successfully turns an argument against the adversary who propounded it. The joy is no less delicious for an academic. Professor Sanne Knudsen tries to turn the trick against the conservative majority of the current Supreme Court in her tidy article, The Flip Side of Michigan v. EPA: Are Cumulative Impacts Centrally Relevant?

Knudsen has gone to war against the narrow, atomistic thinking that, in times of both regulatory advance and retrenchment, has characterized much of environmental policy. Flip Side seeks to infiltrate comprehensive analysis across a broad front of agency decision-making, strengthening environmental regulation under cover of a court decision that struck down a major pollution-control rule.

Flip Side begins by analyzing the Michigan v. EPA opinion, in which the Supreme Court, per Justice Scalia, ruled 5-4 that the Clean Air Act requires EPA to consider industry’s costs of compliance when deciding whether it is “appropriate and necessary” to regulate mercury emissions from power plants. Knudsen avoids, or rather just dips a toe into, several scholarly debates the opinion generated. Did EPA lose at Chevron step one, because the statutory term “appropriate” unambiguously includes cost considerations, or at Chevron step two, because it is unreasonable to exclude cost considerations when construing ambiguous statutory language? How strongly did the Court endorse cost-benefit analysis as a mandatory component of environmental regulation? How broadly will the mandate to consider costs be applied in other statutory contexts?

For Knudsen’s project, the resolutions of those debates are not terribly important. What matters, she argues, are three salient features of Michigan v. EPA: First, that the Court held that a statute required EPA to consider a factor not explicitly mentioned in the statute’s grant of regulatory authority. Second, that the Court conflated review of EPA’s statutory construction with review of the rationality of EPA’s decision. And third, that the Court expressed this conflation broadly rather than through a tight focus on the specific statutory words at issue. That Knudsen draws support for her reading from both Cass Sunstein and Lisa Heinzerling suggests she is on to something.

From these features, Knudsen crucially infers that the method of Michigan v. EPA need not be limited to cost considerations, need not hinge on details of statutory language, and need not be limited to the Clean Air Act. As she puts it, Michigan v. EPA stands for the proposition “that factors which are presumptively indispensable to nonarbitrary decisionmaking must be considered.” (P. 20.) And that frees Knudsen to ask her central question: what other factors, in addition to cost, fit that description?

To answer, Knudsen turns to science to argue that cumulative impacts, no less than compliance costs, are so centrally relevant to environmental policy decisions that they must be considered in any rational regulatory process. For someone with Knudsen’s background in environmental engineering—or with any background at all in ecology or environmental science—this part of Flip Side’s argument takes little effort. Citing examples of climate change, chemical exposure, water quality and supply, and introduced species, Knudsen shows convincingly that interconnectedness and interaction pervade the subjects that environmental statutes address.

Failing to regard these relations when making environmental policy, Knudsen argues, systematically understates the risks presented by environmental contamination, undervalues the public health benefits of regulation, and underestimates the environmental impact of government activity. To view each regulatory or resource management decision in isolation, ignoring the cumulative impact of that decision combined with other relevant governmental or non-governmental actions, Knudsen argues, is to ignore a critically important aspect of the problem. And that, she concludes, is arbitrary and capricious under Michigan v. EPA.

Flip Side concludes with a brief consideration of how environmental policy could improve if agencies knew that their decisions must take account of cumulative impacts in order to survive judicial review. Such a requirement, for instance, could help defend EPA’s practice of including co-benefits (those caused by, but incidental to, meeting the intended regulatory target) in regulatory impact analyses. Knudsen further gives examples of a Minnesota statute that requires consideration of cumulative impacts when issuing air pollution permits, of the potential of evaluating cumulative toxicity risks in chemicals regulation, and of an EPA Region 9 effort to consider cumulative impacts on surface water quality when issuing pollutant discharge permits. In each of these media-specific regulatory programs, Knudsen shows, requiring cumulative impact assessment would bring agency decisions into better alignment with the public health and environmental protection goals of the statutes being implemented.

For litigants that may wish to challenge future agencies that deregulate or decline to regulate without considering cumulative impacts, Flip Side provides a generalized strategy. The strategy is not without its risks. As Knudsen acknowledges only in passing, rigorous evaluation of cumulative impacts is in many contexts difficult to nearly impossible. Even where information exists that would permit some cumulative impact analysis, the exercise presents difficult line-drawing problems: if it is arbitrary and capricious to act without considering cumulative impacts, how far must the analysis extend to survive judicial review? Of course the Supreme Court, in interpreting environmental statutes including the National Environmental Policy Act, the Endangered Species Act, and the Comprehensive Environmental Response, Compensation and Liability Act, has asserted that it is easy to answer such questions by importing concepts such as proximate cause from the common law of torts. Nevertheless, the possibility that courts might misuse Knudsen’s clever argument gives one pause.

On the other hand, Knudsen’s idea may have even more potential than she presents in Flip Side. Her fundamental point, that interactions in complex systems must be considered in formulating rational environmental policy, could be applied also to the cost side of the cost-benefit computation. Experience shows that initial predictions of compliance costs are usually exaggerated. This is not surprising, given the incentives that face a regulated industry before and after a new requirement is promulgated. If Michigan v. EPA means agencies must always consider costs before deciding to regulate, Flip Side implies that courts should welcome, even demand, agency approaches that treat costs in a more dynamic, systems-oriented way.

A petard was a primitive type of grenade, an explosive charge that was intended to breach defensive walls but that often blew up the person planting it. In The Flip Side of Michigan v. EPA, Sanne Knudsen has lobbed a grenade that should explode the walls that constrain environmental regulation into a series of individual decisions analyzed as if ceteris paribus were a description of reality instead of an analytical convenience. It should open a frame for policy-making that will more fully account for regulatory benefits and for the environmental impact of proposed actions while correcting the exaggeration of regulatory and opportunity costs.

With a deeply anti-regulatory ideology currently gripping all three branches of the federal government and many of the states, Flip Side’s thesis is unlikely to be enshrined in the administrative law canon anytime soon. In the fullness of time, however, Knudsen’s argument may—to end with a different metaphor—make some lemonade out of the environmental lemon that is Michigan v. EPA.

Cite as: Steve Gold, Better Environmental Law from an Unlikely Source, JOTWELL (December 7, 2018) (reviewing Sanne H. Knudsen, The Flip Side of Michigan v. EPA: Are Cumulative Impacts Centrally Relevant?, 1 Utah L. Rev. 1 (2018)), https://lex.jotwell.com/better-environmental-law-from-an-unlikely-source/.

Hope

Amna Akbar, Toward a Radical Imagination of Law, 93 NYU L. Rev. 405 (2018).

Amna Akbar’s latest article takes sharp aim at the collectively constrained imagination of current legal scholarship and liberal reform agendas focused on the criminal legal system. And rightly so. She demonstrates that, with notable exceptions, we are mired, and almost lost, in our collective belief that the problems of the criminal legal system are problems of bad actors, bad seeds, and badly-implemented laws. She shows us that so many of the solutions we cling to will do nothing to address the systemic violence so prevalent in poor communities of color. She warns that answers do not lie in “investing even-handedness to law or the police…restoring criminal justice to some imaginary constitutional or pre-raced status quo,…[or] increasing resources for community policing.” (P. 105.) Instead the goal is transformative: to “[shrink] the space of governance now reserved for policing, surveillance, and mass incarceration; and fundamentally [transform] the relationship among state, market and society.” (P. 104.)

Despite this searing and far-reaching indictment of a wide swath of scholarship and advocacy, Akbar forgoes calling for either shame or despair. There is no time for either. Instead, by centering the radical, positive, and, love-inspired visions of the Movement for Black Lives1 and foregrounding their vision of “a world in which Black and other communities of color can thrive” (P. 120), Akbar offers hope.

Akbar performs this remarkable feat through a comparison between a central policy platform of the movement, A Vision for Black Lives: Policy Demands for Black Power, Freedom and Justice, and the reports issued by the Obama Administration’s Department of Justice (DOJ) on the policing practices in Ferguson, Missouri and Baltimore, Maryland. These DOJ reports were, of course, written in the wake of the police shootings of Michael Brown and Freddy Gray respectively. The Movement for Black Lives too, finds its spark (but not its roots) in these and other contemporary moments of state violence. But, as Akbar easily proves, the two sets of documents differ radically. There is much to praise in the DOJ reports, and Akbar gives them their due. But in the end, what is missing is the central understanding, at the heart of contemporary racial justice movements that “policing, jail and prison [are] the primary mode[s] of governing Black, poor, and other communities of color in the United States.” Law here is not a fundamentally just system that has gone astray but is instead the scaffolding upon which this violent system is built. (P. 108.)

This is a searing critique and might lead one to turn away or to despair any possibility of forward movement. But fear not. Akbar’s project, like the Vision, is not only “deconstructive and critical” but also “reconstructive and visionary.” (P. 171.) This is clear throughout, but for the purposes of this jot I want to focus on her discussion of the Vision’s calls for abolition and to “invest/divest.” The demand to abolish policing and prisons as we know them is central to the Vision and the Movement. (P. 154.) But abolitionism today, as in the past (see P. 154 fn 268), seeks fundamentally to build as well as to abolish. And “building” is not a static demand for a far-off future but instead an ongoing practice of “gradual decarceration and positive regulatory substitution.” (P. 155.2) So for example, “[m]ovement organizations are ‘practicing abolition every day…by creating local projects and initiatives that offer alternative ideas and structures for mediating conflicts and addressing harms without relying on police or prisons.’” (P. 155.3)

And as the Vision counsels, we must not only divest but invest. Take police in schools as one small example. While the DOJ reports recommend “better training, evaluation, and policies to improve the school police program,” (P. 156) the Vision calls simply for the “end to the criminalization of Black Youth.” (P. 156.) Under this demand, police are implicated in violence and have no place in creating an educational environment where Black Youth can thrive. But leaving (or divesting) isn’t enough. Funds currently invested in “prisons, police and surveillance,” (here police in schools) would be “invested instead [in] restorative services, mental health services, job programs, meaningful healthcare, and education.” (P. 155.)

Next a word on economics and power. While the DOJ reports, and much of the scholarship and advocacy efforts Akbar critiques, focus narrowly on policing and criminal legal systems while avoiding any discussion of the interests served by these systems, both Akbar and the Vision center these issues. Take for example, the work of one movement group, the Youth Justice Coalition (YJC) highlighted by Akbar. The advocacy work Akbar highlights focused on gang injunctions. (Pp. 151-52.) YJC’s analysis demonstrated that injunctions are targeted not at the communities with the highest rates of gang violence but instead at communities that are “majority white, that border white communities, or that are experiencing an influx of whiter and wealthier residents.” (P. 152.) In this frame, the policing tool—gang injunctions—is not actually broken. Instead it is functioning precisely as it is designed to function—in the service of those whose economic and racial interests the system is in fact designed to serve.

Failing to highlight the way that such a strategy promotes the economic interests of those in power “erases how power circulates through and benefits from formal law-making.” (P. 110.) Finally, to divest away from carceral structures that do violence and invest in institutions (created through law) that will help communities thrive, communities do not need mere input but instead power and control. Without this, nothing else matters.

As Akbar counsels at the conclusion of her article, it is time to let loose our hold on the law as it exists, stop tweaking around the edges of a fundamentally violent system, and instead “imagine with social movements” the role law can play in creating a radically better world. If that’s not a cause for hope, I don’t know what is.

  1. The Movement for Black Lives is, “a collective of more than 50 organizations representing thousands of Black people from across the country [that] have come together with renewed energy and purpose to articulate a common vision and agenda.” Organizational members include, among others, the Black Lives Matter Network. The Movement For Black Lives, About Us.
  2. Citing Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1164 (2015).
  3. Quoting Mariame Kaba, Take No Prisoners, Vice (October 5, 2015).
Cite as: Wendy Anne Bach, Hope, JOTWELL (November 9, 2018) (reviewing Amna Akbar, Toward a Radical Imagination of Law, 93 NYU L. Rev. 405 (2018)), https://lex.jotwell.com/hope/.

Privacy and Surveillance in Nursing Homes

Karen Levy, Lauren Kilgour, & Clara Berridge, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws, 26 Elder Law J. __ (forthcoming 2018) available at SSRN.

A nursing home can be a dangerous place. Undetected abuse and neglect are common. Frustrated with the inadequacy of government oversight, some families have taken matters into their own hands and installed in-room video monitoring devices. In this way, privatized abuse prevention efforts can identify and rectify that which the camera records. The increasing use of so-called “granny cams” has led to legislative responses in at least six states—Illinois, New Mexico, Oklahoma, Texas, Washington, and Utah. These statutory frameworks are thoughtfully examined by Karen Levy, Lauren Kilgour, and Clara Berridge in their forthcoming article, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws.

The covert use of technology such as web-enabled video cameras to “peek in” and also preserve evidence of inadequate care, abuse, or exploitation may be well-intentioned. The overt placement of cameras might help to deter abuse from occurring in the first place. Privacy and autonomy concerns, however, might be overlooked. As these three co-authors explain, the interests of the resident, their roommates, their visitors, and their care workers—even, to some degree, the institutions themselves—merit scrutiny: “These multivalent privacy dynamics create a complicated space for law.” (P. 3.) Indeed, this complex relational space has given rise to strikingly varied legislative fixes. Levy, Kilgour, and Berridge study a relatively unstudied problem with sensitivity and thoroughness.

Initially, this article enters the nursing home setting and explores the relational, interdependent nature of privacy in that space. A nursing-home room is an intimate, personal space for the often vulnerable individuals who live in them. In that space, residents (as well as their roommates) may receive personal care. They may share intimacy with their partners. They may be examined by their doctors. They may change clothes. They may masturbate. A nursing home room can also be a private space for parties visiting those individuals, such as their spouses, their children, or even their attorneys. At the same time, a nursing home room is a closely regulated space where states monitor and structure conduct, especially that of staff. “Electronic monitoring in nursing homes, and the rules which regulate it, thus enter a particularly fraught context, in which the aims and targets of privacy protection, and the perceived threats thereto, are multivalent and interact in complex ways.” (P. 6.)

Having detailed the unique privacy intersections within a nursing-home room, the authors next assess how the law has entered that fraught space. Here, the authors deploy a comparative analysis and identify the salient aspects of the varied approaches that six states have taken. While each statutory paradigm permits in-room monitoring devices by a resident or their representative, the authors highlight significant variation in the ways in which competing privacy interests are balanced. Some states delineate notification and consent forms. Some attempt to police against institutional retaliation. Some require signage or ban covert cameras. Some permit roommates to switch rooms when a camera is introduced. Some constrain the positioning (e.g., allowing only fixed-position cameras) and precision (e.g., focus, volume, etc.) of data collection. New Mexico requires data encryption when a monitoring device is web-enabled. Utah simply bans any device which can transmit recordings. State approaches lack uniformity in addressing the admissibility of recordings in judicial or administrative proceedings. Abuse-reporting requirements and liability limitations vary as well.

Finally, the authors map privacy relationships within these legislative approaches. A significant number of nursing home residents may lack the capacity to consent to in-room monitoring or to condition consent upon limitations. The majority of the statutes analyzed by the authors confirm that a resident’s fiduciary (such as an agent or a guardian) can consent to recording on the resident’s behalf. Washington, interestingly, permits residents’ representatives to authorize visual video monitoring, but not audio, absent a court order.

Sadly, the most common perpetrators of elder abuse are adult children and spouses. These are the individuals typically acting as elderly individuals’ representatives. As a result, the most likely perpetrators are the ones collecting recordings. For the most part, states have failed to account for potential abuse by a representative. Mistreatment by a representative is unlikely to be captured by a monitoring device, and if it is, the representative controls the captured data. Indeed, a representative might use embarrassing footage to intimidate or extort. This potential for misuse must be carefully balanced against gains in documenting abuse by nursing home staff or others, but so far it hasn’t been adequately considered.

Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws is an important and elucidating discussion of these kinds of important policy issues. Its comparative mapping could serve as an effective guide to future legislative efforts. And its explication of competing privacy interests demonstrates a mature sorting of recurring intersections of human interests in the nursing home space. I recommend it.

Cite as: Tom Simmons, Privacy and Surveillance in Nursing Homes, JOTWELL (October 8, 2018) (reviewing Karen Levy, Lauren Kilgour, & Clara Berridge, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws, 26 Elder Law J. __ (forthcoming 2018) available at SSRN), https://lex.jotwell.com/privacy-and-surveillance-in-nursing-homes/.

Populist Judicial Reasoning

Under the Trump administration, each week brings a new attack on due process and on substantive protections for migrants. Sacred cows such as Temporary Protected Status for Salvadorans, which had been extended by Democratic and Republican administrations alike for the past two decades, are dispatched with alacrity. Attorney General Sessions appears intent on destroying the immigration adjudication system, demanding that immigration judges meet unrealistic case completion goals and reversal rates while limiting the resources available to the system. Migrants’ rights are a constant source of litigation, from highly anticipated Supreme Court judgments to battles fought through amicus briefs before the Attorney General.

Beyond the momentary relief of deft political satire, a comparative glimpse across the pond can provide helpful perspective on the situation at home. Vladislava Stoyanova’s forthcoming article reminds us that we are not the only nation facing populist movements that “exploit public anxieties over migration” in order to “curb[] immigration and restrict the rights of migrants.” Her rigorous and painstaking analysis of the European Court of Human Rights (ECtHR) decisions prompts analysis of larger philosophical questions about law’s paradoxical approach to migrants’ rights and offers a provocative new concept: populist judicial reasoning.

Stoyanova begins with a brief definition of populism and its relationship to migration, explaining that “migrants are…excluded from ‘the pure people’ that populists claim to exclusively represent.” She then poses a question that has haunted scholars of immigration law since the first week of the Trump administration: can courts act as effective points of resistance against populism?

As her title suggests, Stoyanova’s analysis focuses on the European human rights system, which offers an effective supranational framework absent in the U.S. context. Yet the parallels with legal protections for migrants available under the U.S. Constitution are still rich. Stoyanova notes that the ECtHR “acts with restraint and sides with the sovereign” when it comes to migrant rights, an apt description of our highest court. There is a difference in motivation; in extending rights to migrants, the European court has concerns about its own legitimacy that have little bearing on the U.S. Supreme Court.

And of course, Stoyanova explores a right that doesn’t exist under the United States Constitution: the right to family life found in Article 8 of the European Convention on Human Rights. In her words, she explores ECtHR responses to “exclusionary nationalist anti-migrant dimension of the populist turn when adjudicating cases implicating the rights of migrants.” Stoyanova dives into the technical details, critically examining the procedural steps the European Court takes to analyze migrants’ right to family life.

The examination is fruitful; it is here that she uncovers the court’s affinity for populist tools. As the court works to avoid acting as a point of resistance to the sovereign, it sets to one side the careful legal reasoning required of courts and instead adopts the populist method of decisionmaking without critical analysis. This is a provocative and rich idea, and this reader wished only that Stoyanova had engaged in deeper theoretical analysis around it. She does provide ample analytical support for her idea, noting four ways in which the court dances with populist tools. The ECtHR assumes a conflict between migrant rights and community interests without examining arguments that upholding migrants’ rights to family life is in the best interest of the community. The Court accepts the state’s general invocation of immigration control prerogatives, rather than requiring the sovereign to clearly articulate specific aims animating its denial of the right to family life. The ECtHR doesn’t engage in any rational or factual scrutiny of the goals offered by the state, and represents migrants’ rights as exceptional. This careful analysis of the case law is instructive, building a strong case for her populist reasoning argument.

Stoyanova also examines critically the ECtHR’s characterization of Article 8 as a positive obligation in the case of migrants who are unlawfully present. This determination contrasts with the treatment of migrants who lose their previous immigration status and can therefore claim Article 8 as a negative obligation. She exposes the analytical flaws in the ECtHR’s approach, explaining that expulsion disrupts family life and “is a clear action attributable to the state irrespective of the formal migration status of the person.” This downgrading of rights for migrants unlawfully present is paralleled in U.S. constitutional law, and Stoyanova’s analysis offers food for thought in debates over that approach as well as arguments about whether removal should be treated as a civil or criminal penalty given its harsh consequences.

As with U.S. Constitutional law, Stoyanova points out that migrants’ rights have long been a weak point of human rights law. In the battle between statism and cosmopolitanism, the sovereign has consistently prevailed. Her article points to the vacuum in legal reasoning that has led to that outcome, and presents us with a new way to frame this transnational phenomenon: populist judicial reasoning. Though neither the ECtHR nor the U.S. Supreme Court is currently doing so, Stoyanova’s detailed critical analysis demonstrates how these courts could act as effective sites of resistance against populism if only they had the will.

Cite as: Jaya Ramji-Nogales, Populist Judicial Reasoning, JOTWELL (September 10, 2018) (reviewing Vladislava Stoyanova, Populism, Exceptionality and the Right of Migrants to Family Life under the European Convention on Human Rights, 10(2) Eur. J. of Legal Stud. 83 (2018)), https://lex.jotwell.com/populist-judicial-reasoning/.

The Value of Identity

Sarah Dadush, Identity Harm, 89 U. Col. L. Rev. __ (forthcoming, 2018), available at SSRN.

You’re the kind of person who cares about protecting the environment, improving working conditions for the poor, and achieving sustainable growth. Indeed, your identity as a socially-conscious consumer is so important to you that you are often willing to pay more for a product if it is sold by a company who claims to share your values, to reflect the kind of person you want to be in this world. Attracted by this premium, more and more companies are making sustainability promises to target such consumers through commercials, print and electronic advertisements, and product labeling (often employing third-party certifications) to signal to the consumer that its products align with the consumer’s values and identity as a socially- and environmentally-conscious global citizen.

So what should happen when you find out that you were duped—that the “clean diesel” car you bought because it was advertised as being “low on emissions” actually pumped into the environment 10-40 times the nitrogen oxide pollution allowed by law (as in Volkswagen’s “Dieselgate” scandal), or where the clothes you purchased at a premium because they came affixed with a “Good Working Conditions” label were actually made in sweat shops, or where the expensive “Fair-trade” chocolate you bought for your daughter was made with the labor of beaten and enslaved children? What harm have you suffered, and what remedies, if any, should be available for your unintentional support of a system of production that polluted the environment, exploited workers, and enslaved children—practices that go against your very identity as a person?

The traditional answer is simple and straightforward: if the wrongdoer’s broken promise caused you economic harm, the wrongdoer should compensate you for that harm by putting you in the position you would have occupied but for the wrong. So, for example, if the $25,000 car you were driving yesterday is practically worthless today (which is what happened in the United States when Volkswagen’s fraudulent “Dieselgate” scheme was revealed), a court would require the wrongdoer to pay compensatory damages of $25,000. But is this the only type of harm you have suffered? Have you not also suffered from a sense that your identity as a socially-responsible consumer has been compromised when you were induced, through another party’s promises, lies, and misrepresentations, to buy or use a product that harms the environment or other human beings against your will?

According to Professor Sarah Dadush in her wonderful article Identity Harm, the answer is a resounding “yes.” (“Financial loss is not the only dimension along which harm is experienced, nor is it the only dimension along which harm should be measured.”) In this important and timely article, which is the first in a proposed series, Professor Dadush makes a significant contribution to remedies by introducing the concept of identity harm, along with a conceptual framework for recognizing such harm where it occurs. Indeed, I was fortunate to have been at a conference recently in which Professor Dadush argued persuasively that courts should be more willing to recognize identity harm, a type of non-economic harm that may be “generated when, as a result of a company’s unsubstantiated or broken sustainability promises, a disconnect materializes between a person’s idea of who they want—and try—to be in the world, and who they have unwittingly been made to be in the world.” These harms, which are felt most acutely by socially-conscious consumers (i.e., “those who care not just about the physical or price attributes of a given product, but also its environmental and social-humanitarian impact”), may “arise[] upon discovering one’s unwitting complicity in a scheme that hurts other beings” or harms the planet in a way that is contrary to one’s own values—contrary, in short, to the consumer’s identity, to the way in which the consumer sees itself situated in the world as a socially-conscious and responsible person.

Professor Dadush is no mere idealist, however. She recognizes that, unlike economic harm, which can easily be measured by the market (as in the Volkswagen example discussed above), identity harm is non-economic and subjective by nature, which makes it difficult to measure in practice. Further complicating the picture are two additional factors: first, that identity harm is “intimately connected to the injury experienced by a third party—a fellow human being or the planet, as a result of poor (or outright bad) corporate sustainability practices,” and second, that the amount of harm suffered is “not necessarily correlated to the dollar amount paid for the offending product.” Therefore, when it comes to measuring identity harm, the economic harm suffered by the consumer is but a poor proxy (at best) for estimating such damages. Indeed, it is conceivable (perhaps even likely) that a consumer may experience more identity harm upon learning that the $1.30 she spent on a chocolate bar helped support a system of child slave labor than she would have experienced upon learning that the $25,000 car she purchased polluted the environment.

The difficultly in measuring this type of harm, of course, makes it no less real, although it does pose some practical problems. How can we measure the victim’s harm if it is subjective by nature? What if the victim is faking his or her harm? These concerns, though real, are far from fatal. Courts have dealt with these types of problems before, and have developed a number of tools for measuring non-economic harm in a whole host of circumstances, ranging from pain and suffering to dignitary harms to emotional distress to harm to one’s reputation. The problem of measuring identity harm, though challenging, is no different. For instance, Professor Dadush cleverly proposes that the identity harm suffered by “Dieselgate” victims might best be captured not by the diminished resale value of their cars, but by “the lost greenness” of their purchases. This harm, in turn, could be measured by looking at how many miles each car owner drove, “calculating the above-what-was advertised and the above-what-was legally-permitted-in-their-state emissions,” and then attaching a price to these additional emissions, which “could then be used as the benchmark for damages that would eventually be placed into a climate mitigation fund.” (P. 57.)

Indeed, Professor Dadush makes a persuasive case that courts are already identifying and measuring such harm, albeit in a poorly-conceptualized, haphazard manner (my words, not hers). To show this, Professor Dadush engages in a thoughtful discussion of several recent cases in which courts have struggled with this concept. Although she concedes that some courts, for dubious reasons, have refused to allow actions for such harms to proceed (see her discussion of the Chocolate cases (pp. 31, 33)), other courts have been more receptive to such claims (see her discussions of Kaksy v. Nike and the “Dieselgate” victims, both of which resulted in settlements that recognized and remedied such harm, although only “collateral[ly] and incidental[ly]”), a trend that seems well-positioned to grow in the future (see her fascinating discussion of Nemet v. Volkswagen Grp. Of Am., Inc., a case currently pending in the Northern District of California filed by plaintiffs who sold their polluting VWs before the scandal broke, thereby suffering only indirect, non-economic losses.) As courts and litigants continue to struggle with this rather new but important concept, they will find Professor Dadush’s thoughtful conceptualization and analysis of identity harm to be indispensable. I know I have.

Cite as: Marco Jimenez, The Value of Identity, JOTWELL (August 1, 2018) (reviewing Sarah Dadush, Identity Harm, 89 U. Col. L. Rev. __ (forthcoming, 2018), available at SSRN), https://lex.jotwell.com/the-value-of-identity/.

Modernizing Immigration Enforcement

Amanda Frost, Cooperative Enforcement in Immigration Law, 103 Iowa L. Rev. 1 (2017).

Public rhetoric about immigration paints the issues in stark terms. Immigrants are either criminals and terrorists or they are family members, workers, and survivors of persecution. Immigration is either our secret sauce, the key to our national prosperity, or it is the sleeper cell in our midst, the smooth-talking snake. It is about inclusion or exclusion, banishment or return, belonging or outcast. Immigrants are virtual citizens, or vicious vipers. They are law-abiding; they are lawless.

Amanda Frost’s Cooperative Enforcement in Immigration Law describes how this dichotomy in the discourse plays out in approaches to deportation policy. Deportation policy, she observes, is stuck in two parallel grooves. It demands either unfettered deportation of unlawfully present noncitizens, or the exercise of prosecutorial discretion to permit prescribed groups of noncitizens to remain in the United States without a recognized status.

Cooperative Enforcement carves a third path, one that emphasizes compliance with immigration policy. Frost suggests we retrofit immigration enforcement using a well-oiled administrative law concept: cooperative enforcement. This term sounds like it is ripped from the pages of the Secure Communities program. Secure Communities relied on a veneer of cooperation between nonfederal police and immigration authorities in apprehending fugitive or dangerous noncitizens. That narrative of cooperation evaporated when courts revealed that the immigration “detainers” that Secure Communities depended on were in fact invitations to police to make expensive unconstitutional arrests.

This sort of interaction bears no resemblance to Frost’s cooperative enforcement concept. Her proposal, instead, is a total re-envisioning of the role of DHS’s immigration enforcement agencies, from an enforcement model to a compliance model. Sound radical? This approach may feel new to immigration law, but it borrows from an administrative law approach that is as old as Saturday Night Fever.

Remain calm. Frost is not suggesting we retrofit the Border Patrol with big hair, velour uniforms, and wide lapels. The concept of cooperative enforcement has been de rigueur in other areas of administrative law, updating “the rigid, adversarial, command-and-control regime that dominated the regulatory environment in the 1970s and 1980s.” Over the past 20 years, the household names of administrative agencies—OSHA, the FDA, the EPA, and the SEC—have adopted a “collaborative approach to rulemaking and enforcement. They pioneered initiatives to use education, consultation, and flexible interpretations of legal standards to work together with regulated entities to come into legal compliance.”

Frost proposes that the immigration bureaucracy do the same. She envisions a new model under which government officials would proactively assist specific categories of unauthorized immigrants to come into compliance with the law. A sizable chunk of unauthorized immigrants qualify for at least one pathway to lawful status, but most are unaware of it or are stymied by the complexity of process. The immigration bureaucracy has an important role to play in navigating through the opportunities and complex procedural pathways “through education, assistance, adoption of streamlined, user-friendly procedures, and the liberal exercise of discretion, just as federal agencies such as OSHA, FDA, EPA, and SEC regularly assist the entities and individuals they regulate come into compliance with federal law.”

In the current moment, when command and control suffuses the immigration enforcement creed, a compliance-oriented approach seems like heresy. But Frost offers compelling reasons. “As in other regulatory contexts,” she points out, “the use of adversarial, command-and-control style enforcement of immigration law is both costly and inefficient.” Removing a single noncitizen costs an average of about $12,000, and “the immigration bureaucracy has the resources to remove only about 4% of the undocumented population each year.” “Deportation alone,” she concludes, “cannot solve the nation’s unauthorized immigration problems, just as enforcement actions alone cannot ensure compliance with environmental or workplace safety laws and regulations.” Working with eligible unauthorized immigrants to take advantage of existing pathways to legal status “reduces the unauthorized population without expending resources, harming the economy, or amending the immigration statute.”

“Cooperative enforcement is both more legally defensible and politically palatable than the extensive use of prosecutorial discretion,” Frost asserts.  It can’t be more controversial than President Obama’s efforts to expand prosecutorial discretion to include unlawfully-present parents of citizens and lawful permanent residents, she says, pointing to the persistent criticism and prolonged litigation that DAPA attracted. Rather, a cooperative enforcement approach “seeks to use existing laws to assist unauthorized immigrants to regularize their status, and thus cannot be attacked as lawless or an abuse of executive power.”

Following in the footsteps of other agencies toward a flexible, cooperative approach to immigration enforcement isn’t just about legitimacy or efficiency. Complying with immigration law is as much about recognizing an individual’s right to remain as it is about requiring removal. Frost’s idea, at bottom, is about enforcing all of the laws, not just those that favor deportation.

Cite as: Juliet Stumpf, Modernizing Immigration Enforcement, JOTWELL (July 20, 2018) (reviewing Amanda Frost, Cooperative Enforcement in Immigration Law, 103 Iowa L. Rev. 1 (2017)), https://lex.jotwell.com/modernizing-immigration-enforcement/.

Can the Constitutional Sin of Colonialism be Redeemed?

Seth Davis, American Colonialism and Constitutional Redemption, 105 Cal. L. Rev. 1751 (2018).

The United States Constitution—that great experiment in creating a “more perfect union,” more democratic, egalitarian, and libertarian—was founded in sin. These sins include, among others, slavery and political exclusion of people of color and women of all races. They also include the erasure of sovereignty required to found a country on a continent occupied by existing indigenous sovereigns. Many before Seth Davis, including Milner Ball, Philip Frickey, Nell Newton, David Wilkins, and Robert Williams, have wrestled with this founding constitutional evil. Several things, however, distinguish Professor Davis’s American Colonialism and Constitutional Redemption. The result is an important addition to the canon of federal Indian law.

First, Professor Davis engages with theorists outside federal Indian law to an unusual degree. Professor Davis specifically takes on fiduciary theorists like Evan J. Criddle and Evan Fox-Decent, but also engages with other constitutional theorists like Sanford Levinson, Aziz Rana, and Jack Balkin; political theorists like Carole Pateman, Jennifer Nedelsky, and Robin West; race theorists like Dorothy Roberts and Miguel de la Torre; and even political figures like President Barack Obama and Reverend Adam Clayton Powell Sr. While other scholars of federal Indian law have written noteworthy works in other areas, few have so deftly connected their work to debates outside the field. The result is an article that helps to bring the law of Native people into mainstream debates, and out of the niche in which it is sometimes cabined.

Second, Professor Davis, more convincingly than most, rebuts the notion that either a federal trust responsibility or a treaty relationship can redeem the constitution of its colonial sins. Although (as highlighted in the work of Kevin Washburn recently praised in Jotwell) the federal-Indian trust relationship has been transformed from a paternalistic one to serve tribal self-determination, Professor Davis notes that the fundamentals of the trust make it ill-suited to this goal. Trusts, he writes, are paradigmatically written by settlors without the consent of their beneficiaries, and depend on the control of the trustee and inability of the trust beneficiary to manage its own affairs. As such, the trust is fundamentally at odds with the principles of tribal self-determination and agency. Further, after pointing out the limited efficacy of the trust concept in restraining or punishing the federal government, he argues that, quoting Rev. Powell, it is a kind of “cheap grace,” providing absolution without demanding anything meaningful from the colonizers.

Although other scholars have offered treaty relationships as a basis for a more positive relationship, Professor Davis points to their limitations as well. Treaties were drafted by U.S. negotiators, often agreed to from positions of little choice, and left out many tribes with whom matters could be settled outside of treaty relationships. Relying on written treaties is a futile effort to use the master’s tools to dismantle the master’s house.

Third, Professor Davis offers a new vision of the tribal-federal constitutional relationship, a model of “relational consent.” Drawing on relational contract theorists, he argues that the tribal-federal relationship should be understood not through formal treaties but through relationships based on mutual respect. This understanding finds support in history and indigenous law as well as theory. As Rob Williams and others have argued, for over a century relationships between tribal and Euro-American governments were forged through a cross-cultural diplomacy that incorporated indigenous concepts of political relationship through metaphoric kinship. It also is consistent with (some) existing constitutional precedent, which has combined historical practice and the spirit of Indian treaties to create a protected status for tribal sovereignty.

Professor Davis’s vision is obviously inconsistent with another long-established constitutional principle: that the federal government has plenary power to remove the sovereign and property rights tribes retain, so long as it does it clearly enough.1 Is there any chance of undermining this principle? The demise of constitutional precedents like Scott v. Sanford and Plessy v. Ferguson provide some hope of such a constitutional revolution. But those transformations took a Civil War on one side and the spectacle of massive resistance on the other to occur. Present politics, moreover, show how little redeemed we still are from the original sins of racial inequality. I confess I am skeptical that the plenary power doctrine will ever be overruled, no matter how many fine articles we write. But short of that constitutional revolution, Professor Professor Davis’s vision provides us with a new way to understand the sometimes paradoxical constitutional position of tribal nations. I believe this article will become a touchstone in federal Indian law and critical constitutional theory, and hope its constitutional vision will be incorporated by judges and politicians who make the law of indigenous peoples.

  1. It is relevant here to say that I disagree with one important claim in the article. I do not believe the plenary power doctrine depends on the trust relationship. There are several other constitutional hooks for this power, and I believe the Marshall trilogy as well as much later Indian law jurisprudence prioritize those. But Professor Davis’s argument on this score is not baseless, and, more importantly, this disagreement does not undermine the core arguments or contributions of the piece.
Cite as: Bethany Berger, Can the Constitutional Sin of Colonialism be Redeemed?, JOTWELL (July 6, 2018) (reviewing Seth Davis, American Colonialism and Constitutional Redemption, 105 Cal. L. Rev. 1751 (2018)), https://lex.jotwell.com/can-the-constitutional-sin-of-colonialism-be-redeemed/.

Do Civil Rights Remedies Deter Police Misconduct?

John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. 1539 (2017).

Constitutional tort remedies, like their common law counterparts, are presumed to deter future violations. But the inference of deterrence depends, of course, on a number of sub-inferences that may not hold. For example, deterrence may not obtain if the officer is indemnified and therefore does not feel the personal sting of a money judgment. In a recent article, Professor Joanna Schwartz showed that officer indemnity is, in fact, nearly universal. But maybe deterrence might still obtain because the police department, which has to foot the bill of the indemnification agreement, will push its officers to obey the law. In another article, however, Professor Schwartz showed that this might not happen because most departments carry liability insurance and the cost of indemnification will often simply disappear into a budget line item for insurance. If officers are indemnified, and departments are insured against any loss, how will constitutional tort actions have any deterrent force? Schwartz suggested at the end of her article that one avenue for deterrence might be found within the operation of the insurance agreements themselves and that further study was needed.

Professor John Rappaport’s fantastic new article, How Private Insurers Regulate Public Police, fills that need, and does so splendidly. To study an issue like this, one must dive deep into the insurance industry itself, and that is exactly what Rappaport did. His article is based on “interviews with over thirty insurance industry representatives, civil rights litigators, municipal attorneys, police chiefs, consultants and more.” There is so much to th­e article that any summary will fail to do it justice, but briefly, Rappaport charts a chain of incentives that works as follows: police departments have an incentive to obtain liability insurance because it reduces risk. Insurance companies, in turn, have an incentive to reduce claims, thus increasing their profits. To reduce claims, insurance companies often encourage (or even require) education, training, accreditation, and other conditions that tend to improve officer compliance with the law, thus reducing claims. Departments have an incentive to follow insurance companies’ guidance on these matters not just because they need and want liability insurance, but also because doing so may reduce the cost of premiums and deductibles.

Rappaport is careful not to claim that insurance certainly reduces police misconduct, for that claim would require much more than the qualitative research he presents. Moreover, Charles Epp has collected data that casts some doubt on the role of insurance in pushing police reform (though, as Rappaport notes, Epp’s data is now nearly two decades old and did not focus on misconduct itself, but rather best practices). Nonetheless, Rappaport’s study leaves little doubt that insurance plays a significant role in how departments handle officer training and personnel decisions. The inference of deterrence—to one degree or another—is thus reasonable in most cases.

What is especially attractive about deterrence-via-insurance is that, according to Rappaport’s research, insurance companies may actually be better situated than police departments at avoiding future violations. This is because insurance companies are able to aggregate data from across jurisdictions and are able to better balance the cost of a specific violation against the cost of preventive measures. Insurance companies’ capacities in this regard start to make them look like a government agency, which naturally brings up the question of why an insurance company, rather than the government itself, is regulating the police.

Government has its own problems, however. Agencies, Rappaport notes, are often led by political appointees (or at least the politically minded) and thus must contend with complicated political concerns, such as the interests of police unions, periodic elections, and legislators who control the agency’s funding. This is not to say, of course, that private insurance is always superior. Insurers are necessarily driven by a profit motive and will be far less concerned with constitutional violations that do not lead to high-dollar judgments. Racial bias, for example, is an enormous problem in policing (much as in life generally) but rarely plays a role in high value cases.

In sum, Rappaport’s article brings the potential deterrent force of constitutional tort actions into clearer focus: The availability of a civil rights action gives rise to a demand for liability insurance. Firms in the resulting insurance market naturally seek ways to increase profits, one of which is to lower claims. And one way to lower claims is to demand better education, training, and other reforms by the insured. The article does not prove that the deterrent force always applies, and Rappaport does not claim otherwise. But for those who might contend that civil rights actions do not deter misconduct, the article offers an insightful and eminently reasonable account how they might (and in many instances, likely do) deter misconduct.

Cite as: Jack Preis, Do Civil Rights Remedies Deter Police Misconduct?, JOTWELL (June 21, 2018) (reviewing John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. 1539 (2017)), https://lex.jotwell.com/do-civil-rights-remedies-deter-police-misconduct/.

The Need For Facts In Immigration Policymaking

Ming H. Chen, Leveraging Social Science Expertise in Immigration Policymaking, 112 Northwestern L. Rev. Online (forthcoming 2018), available at SSRN.

In President Donald J. Trump’s first State of the Union address he framed immigrants as dangerous criminals—gang members and murderers. To address this public safety threat President Trump proposed building a wall along the Southern border, ending the visa lottery, and eliminating the majority of family-based green cards. Yet social science research dating back to the early 1900s has found that immigrant criminal activity is significantly lower than United States citizen criminal activity. Despite these robust social science findings,  immigration policy makers continue to promote and adopt policies based on the idea that immigrants present a significant public safety risk to the American public.

Ming H. Chen’s forthcoming essay, Leveraging Social Science Expertise in Immigration Policymaking, offers a critical intervention at this time in immigration policymaking. Chen’s essay presents concrete strategies that immigration policymakers can utilize to ground immigration policymaking in facts and social science insights. Chen’s recommendations focus on the process by which immigration decisions are made and seek to bring traditional administrative and constitutional principles into the process. First, bring presidential policymaking into the administrative state. Second, use political mechanisms to improve the quality of evidence used in the immigration policymaking process. Finally, strengthen judicial review of immigration policy.

These proposals are based on the traditional role that expertise has played in administrative decision-making. Experts and administrative procedure are two ways that administrative law has safeguarded against arbitrary decision-making. Administrative agencies traditionally embraced social science evidence to improve the quality of the agency decision-making. These agencies have relied on experts within the government and externally. Civil servants are the internal experts, and they offer learned expertise as a result of accumulating experience in the complex policy matters that they work on. External experts are used on advisory councils and confer with agency experts while maintaining their university or nonprofit positions. Advisory councils offer a forum in which social scientists are able to offer their professional norms regarding information-gathering and research methods. Incorporating external experts into the policymaking process provides a basis for decision-making based on professional norms rather than politics.

Administrative procedure is the other means by which agencies have limited arbitrary decision-making. Courts have increasingly required agencies to “identify their assumptions, methods, and evidence, as well as explain their reasoning.” (P. 4.) Today administrative decision-making is highly proceduralized, as evidenced by the Administrative Procedure Act (“APA”) and other trans-substantive legislation. Additionally, many organic statutes dictate what can and cannot be considered during decision-making.

Part II of Chen’s essay illustrates how immigration policymakers reject expertise. This section analyzes border control policies, federal responses to sanctuary cities, and the exclusion of refugees to demonstrate the institutional failures that allow immigration policymakers to ignore facts and social science insights. Chen contends that incorrect assumptions about the drivers of unauthorized migration by Republicans and Democrats has led to border control policies that are ineffective at best and at worst counterproductive. For example, sociological research regarding the factors driving migration suggests that a border wall is likely to exacerbate unauthorized migration rather than halt it. Sociologist Douglas Massey’s research indicates that heightened border control prevents circular migration such that individuals remain in the United States and establish roots rather than traveling to the United States for seasonal work opportunities and returning to their country of origin.

Federal responses to sanctuary cities are based on a “strong belief in immigrant criminality.” (P. 10.) This belief leads the federal government to adopt policies to punish sanctuary cities. Yet the idea that immigrants commit more crimes than citizens is false. Chen cites numerous reports and social science research findings showing that immigrants do not commit more crimes than citizens. Despite these facts the perception of immigrants is shaping immigration policy.

Finally, President Trump’s decision in January of 2017 to prohibit refugee admissions and his decision to reduce the refugee cap by more than half are based on the idea that refugees present a heightened terrorist threat. These presumptions ignore evidence regarding the rigorous vetting process that refugees undergo and “conflate terrorists and their victims.” (P. 14.)

Chen argues that importing traditional administrative and constitutional principles can bring more social science expertise into the immigration decision-making process. First, presidential policymaking should be brought into the administrative state by involving civil servants when undertaking executive action. Consulting with the affected agencies and encouraging those agencies to promulgate further regulations to carry out the executive orders would facilitate this goal. Second, use political mechanisms to improve the quality of evidence used in the immigration policymaking process. For example, amend the APA or the Immigration and Nationality Act to require that policies be based on a factual record that is subject to review and that information regarding methods and data sources for any studies relied upon be disclosed. Finally, strengthen judicial review of immigration policy. Chen suggests that normal standards of constitutional and statutory review should apply to immigration decisions. Such an approach “would require courts to take a ‘hard look’ at the rationality of agency decision-making, or at least be sure that the agency has taken a hard look and provide some kind of rational explanation for the policy changes.” (P. 19.)

Immigration policy is a key part of the President’s legislative agenda. As an increasing number of policy decisions are made in the area of immigration it is critically important that these decisions are based on accurate and reliable information. Chen’s essay makes two important contributions. First, it outlines the various ways in which current immigration policy is not based on accurate and reliable information, which causes the policies to be ineffective and at times counterproductive. Second, it provides an important roadmap for operationalizing administrative and constitutional principles to provide for more evidence-based immigration policy.

Cite as: Angela Banks, The Need For Facts In Immigration Policymaking, JOTWELL (June 6, 2018) (reviewing Ming H. Chen, Leveraging Social Science Expertise in Immigration Policymaking, 112 Northwestern L. Rev. Online (forthcoming 2018), available at SSRN), https://lex.jotwell.com/the-need-for-facts-in-immigration-policymaking/.

Chevron as Remedy

Andrew F. Hessick, Remedial Chevron, 96 N.C. L. Rev __ (forthcoming 2018), available at SSRN.

What’s not to love about a remedies approach to solving an Administrative Law problem? Professor Andrew Hessick’s forthcoming article, Remedial Chevron, aims to do just that. Critics of Chevron deference assert its foundation is shaky. Still, Chevron deference underlies countless judicial decisions. Originalists and textualists challenge Chevron’s legality under the Constitution, the Administrative Procedures Act (APA), and nondelegation doctrine. Two sitting Supreme Court justices call for its demise. Professor Hessick views these threats as dangerous and seeks to save Chevron through reinterpretation. He pragmatically alters tack to overcome formalist objections by reformulating our existing conception of Chevron to a “Remedial Chevron”—a constraint on the court’s remedial authority. The article’s goal is to save Chevron from peril and retain useful purposes. Courts would not be bound to agency interpretation but instead conduct de novo review of the law. This de novo power would be limited to the authority to vacate an agency determination only if it were unreasonable.

The reason the challenges pose threats to the continued vitality of Chevron, according to Professor Hessick, is that the logical conclusion to the legal challenges is that Chevron cannot stand. Professor Hessick seeks to avoid this conclusion and proposes a reconceptualization in order to save Chevron. Underlying his argument is a commitment to retaining the functional advantages of Chevron within the administrative system and to maintaining certainty and stability of agency regulation and adjudications.

According to Professor Hessick, the three primary legal obstacles to Chevron’s legality are: (i) judicial power under Article III of the Constitution, (ii) delegation of interpretive authority, and (iii) scope of judicial review under the APA. Under the first category of attack, Justices Gorsuch and Thomas contend that Article III’s judicial power centers on the federal judiciary’s independent interpretation of law. Professor Hessick outlines Founders’ support for this view but notes a contrary line of court opinions providing for deference to agency decisions. He does not resolve this split, but offers that if Article III requires independent judicial interpretation, Chevron deference conflicts with the Constitution. Under the second line of attack, Congress’s passing of statutes for agency administration amounts to an implicit delegation of power to interpret laws to agencies. Professor Hessick explains two flaws with this critique: it rests on a fiction and violates Article I’s nondelegation doctrine. Chevron flounders under this attack. The last legal obstacle to Chevron is tension with the APA’s requirement that courts interpret statutes. As Professor Hessick explains, any attempt to surmount this hurdle with an implied theory conflicts with the APA’s requirement of express modifications. Accordingly, Chevron remains vulnerable to legal attack.

Remedial Chevron as the answer. Professor Hessick doesn’t respond to policy critiques of Chevron but offers a theory of Chevron as remedy to eliminate the legal barriers. And it does so without overturning mountains of precedent and agency regulations. Viewing Chevron as a remedial doctrine, the judiciary would not show deference to agency interpretations of the law. Courts could vacate agency interpretations on erroneous grounds only if the agency unreasonably interpreted the statute. It is unclear, however, whether Professor Hessick’s conception of Chevron as remedial doctrine is a prudential suggestion for courts to reinterpret Chevron precedent to a limited remedy and behave accordingly in the future or is it a statutory or constitutional mandate that Congress must implement. Given Professor Hessick’s endorsement of Congress’s power over statutory remedies, his proposal may require congressional action.

Professor Hessick proposes a modified interpretation of Chevron to a remedies doctrine as the solution but offers limits on its application. To support this theory, he provides a concise argument for the practice of placing limits on remedies. For example, he notes the legal requirements a movant must meet before securing an injunction. While I appreciate his effort to show limitations, the first category and perhaps the third simply remind readers that remedies law is bounded by laws, precedent, and doctrines. These bounds exist even if the remedy is equitable such as the injunction. It aids his argument that the Supreme Court, in eBay and Winter, strengthened the requirements for injunctive relief: imposing a more pronounced judicial obligation to analyze four factors before issuing (or denying) an injunction, even where historically a judge might have automatically granted the relief. Professor Hessick also emphasizes that similar limitations exist for damages. This assertion is true: scores of doctrines of limitation confine damage remedies. For example, the law of remedies includes a variety of limits including avoidability, certainty, and foreseeability. In certain vectors, the remedy simply will not lie. This result is true for purely economic losses even though caused by a defendant’s negligence. As the last example of limitations on remedies, Professor Hessick reminds us that violations of constitutional rights do not guarantee relief. Regarding this claim, Professor Hessick is correct, though it is sometimes regrettable that for every wrong, the law does not afford a remedy. Accordingly, a limited conception of Chevron would fit within the remedies canon.

Reconceiving of Chevron to a limited remedies frame addresses the legal objections stemming from the Constitution, the APA, and the nondelegation doctrine. No doubt it is within the judicial power of Article III for Congress to tailor the ways the federal judiciary lends relief. Further, Congress has broad Article III power to constrain federal judicial power to issue and shape remedies. Would adoption of Professor Hessick’s reframe result if we simply think about Chevron differently and convince courts to do the same or would it require congressional action? Congress has that power as long as it steers clear of constitutional boundaries such as Klein and Plaut. Professor Hessick’s solution involves a narrowing of when the court can grant relief to instances of agency unreasonableness; he does not suggest altering the rules of decision or the results in a particular case. Thus, Remedial Chevron appears within judicial power; it does not rely upon a delegation fiction, and it better comports with the APA.

Might it garner critique due to its own formalism? The reinterpretation requires courts to be in good faith about when an interpretation is unreasonable versus erroneous on other grounds. Professor Hessick addresses other likely concerns. He offers that the reinterpretation applies narrowly: “courts would consider the reasonableness of an agency interpretation only in adjudicating challenges to that agency’s action” but “would not be bound by agency interpretations in suits that do not challenge agency actions.” Professor Hessick replies with a helpful example about vehicle regulations. The reframe also would eliminate Chevron step zero, which delimits the agency interpretations subject to Chevron deference. Instead, Remedial Chevron would apply to agency interpretations of any law underlying its action—even laws the agency is not charged with administering. The APA limits a reviewing court’s power to vacate an agency’s action as contrary to law. Professor Hessick maintains that Remedial Chevron does not rely on the theory of congressional delegation of interpretative authority to agencies. Accordingly, courts need not resolve whether the agency possessed authority to issue binding interpretations of the statute. Last, Professor Hessick acknowledges that his approach constitutes a sizeable departure from existing law in that an agency would not be permitted to adopt a contrary interpretation of an ambiguous statute already interpreted by a court. The court’s interpretation is the law as “Remedial Chevron does not depend on the theory that agencies have primary interpretive authority.”

Should we reconceive Chevron to embody a remedies doctrine? If you wish to retain administrative stability and diminish formalist objections to Chevron deference, Professor’s Hessick’s proposal warrants your serious consideration.

Cite as: Caprice Roberts, Chevron as Remedy, JOTWELL (May 23, 2018) (reviewing Andrew F. Hessick, Remedial Chevron, 96 N.C. L. Rev __ (forthcoming 2018), available at SSRN), https://lex.jotwell.com/chevron-as-remedy/.