The recent report from the Intergovernmental Panel on Climate Change this fall has made clear the urgent need to address climate change. What should be the primary policy tool that we use to address the problem? Economists have vociferously advocated for the use of carbon taxes or cap-and-trade permit systems, on the grounds that they provide the most efficient way to decarbonize global economies. Yet carbon taxes have had little success in the political arena. Many of the existing policies that countries and states have used to address carbon emissions have been regulations or subsidies, not market-based approaches. Is this a fundamental misstep on the part of policymakers?
In her recent article, Energy, Governance, and Market Mechanisms, Alice Kaswan argues that this is not a misstep, and that in fact there are good reasons—political, democratic, even economic—to prefer non-market-based instruments to advance decarbonization. Her article is ambitious in its scope but effective in raising important questions about what approach is best.
Kaswan raises a couple of key points about why non-market-based mechanisms may be superior to address the transition to a decarbonized economy. First, she argues that government coordination of climate policies can allow the achievement of multiple goals in addition to reducing carbon emissions at the least cost (which is what market-based tools excel at). For instance, we might be concerned about the distributional impacts of a transition to a decarbonized economy and adding on social equity measures to market-based tools may not be as effective as a fully integrated approach. Similarly, there are a lot of additional issues we are concerned about in energy production than simply carbon emissions (e.g., bird mortality from wind turbines, or long-term waste disposal from nuclear power), and a price on carbon alone cannot help us resolve those tradeoffs.
Second, Kaswan argues that long-term planning is an essential component of a transition to a carbon-free energy system, given the interconnectedness of a wide range of elements of our energy systems and the long timeframes for many investments in those systems. According to Kaswan, market-based tools may not be the most effective in managing these kinds of planned transitions—particularly if carbon prices are low, and so far we have only observed relatively low carbon prices in practice.
Third, Kaswan argues that public participation would be more robust for non-market-based regulatory measures, and that this public participation will result in a more equitable and more accountable approach to carbon reductions. And finally, Kaswan argues that non-market-based mechanisms appear to be more politically realistic than stringent market-based tools—something that has been quite apparent this fall as the French protest against a new gas tax and Washington state voters turned down a carbon tax proposal.
One law review article will not be able to conclusively answer any of these difficult questions about the role of market-based mechanisms in climate policy—the challenge spans the entirety of the modern economy, across countries with very different political and cultural settings, and an incredible range of technical problems. But Kaswan’s piece is a vital starting point for the now-vibrant debate about which policy approaches will be more successful, and an important counterpoint to a policy discourse that has mostly been dominated by advocates of carbon pricing. Even if you don’t agree with her arguments, Kaswan’s analysis should give you important points to consider.
Andrew Hammond, Pleading Poverty in Federal Court
, Yale L. J.
(forthcoming). Available at SSRN
In United States v. Kras, the Court rejected the argument that a poor person petitioning for protection from creditors should not have to pay a filing fee in order to access the bankruptcy system. The majority held that an able-bodied person could make the payment because the $50 fee was only $1.92 per week if spread over six months and $1.28 if spread over nine months. Justice Blackburn noted that such a fee at the time was “less than the price of a movie and little more than the cost of a pack or two of cigarettes.” Justice Thurgood Marshall’s dissented, observing:
It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are….A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have….
For the poor, fees, even supposedly “nominal” fees, matter. In the civil law context, Congress has established a $350 filing fee to access the federal courts and the Judicial Conference tagged an additional $50 administrative fee onto that. (P. 12.) While the non-poor may be able to treat the combined $400 fee as a mere inconvenience, such an amount can serve to bar poor civil litigants from the federal courts.
Andrew Hammond’s article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond’s article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for what information is collected and for the level of need that is associated with a fee waiver. Blending empirical work—a significant contribution of the article is that it catalogues the in forma pauperis forms used by all 94 federal district courts—with an appreciation for the struggles faced by poor litigants, Pleading Poverty in Federal Court is a well-written, targeted intervention that hopefully will improve the ability of the poor to access the federal courts.
The article includes a number of eye-opening details. The Southern District of Alabama asks litigants to provide the makes and models for their “automobiles, boats, [and] motorhomes.” (P. 18.) Puerto Rico’s district court asks movants if they have income from horse racing and gambling. (P. 21.) These variations are arguably less striking than the fact that different judges in the same federal district court can have different standards and practices when it comes to their review of in forma pauperis motions. As Hammond notes, “Some judges might use 100% of the federal poverty guidelines (FPL) as their threshold. Others will use 200%. Some will simply have their law clerk review the form and make a determination based on the information provided.” (P. 27.) Even putting aside the problem of variation across districts, there are many problems with leaving in forma pauperis discretion to each judge in the same district court. It can make the question of whether a poor litigant can get into the courtroom wholly arbitrary, tied to whether the assigned judge is someone who gives waivers easily or someone who rarely gives a waiver. Moreover, review of in forma pauperis motions forces judges to “make complicated, arcane poverty determinations—often reconciling a dozen categories of income with a dozen categories of expenses,” which Hammond argues is not a good use of the scarce time of an Article III judge. (P. 28.) (While I appreciate Hammond’s point, part of me is glad that this process forces judges to confront the poverty of some of the litigants, to look at the details of their lives. Such examinations may often be technically irrelevant to the proceeding but they may nevertheless help judges see both trends and the full person before them.)
In addition to the complications for federal judges associated with variation in the standards used by district courts when it comes to in forma pauperis motions, Pleading Poverty in Federal Court highlights the impact overly detailed information collection can have on poor litigants. Though Hammond’s article focuses on federal court practices, it includes a similarly impressive catalogue and overview of how state courts consider in forma pauperis motions. Just as in the federal courts, variation abounds across state courts. But Hammond also observes that states have adopted a number of practices that simplify the process of applying for a fee waiver, including establishing presumptive eligibility for fees to be waived based on: (a) a pre-determined multiple of the federal poverty line, (b) receipt of particular means-tested welfare benefits, or (c) representation by legal aid attorneys. (P. 40.) Moving away from overly intrusive information collection towards a system that partly piggybacks on the means-testing work of other entities, supplemented by a simpler form, would help judges and poor litigants. Khiara Bridges shows in The Poverty of Privacy Rights that the law strips the poor (but not the middle and upper class) of their privacy—often as a condition of receiving means-tested benefits—in ways that use information as a means of control. Although looking at a particular area of civil procedure as it relates to the poor and not the entire legal landscape, Hammond’s argument that “a streamlined, shorter form makes the process more sophisticated and more accurate, while preserving the dignity of poor people” (P. 57) fits nicely alongside Bridges’ work.
Some of the best poverty law articles—for example, Lucie E. White’s Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G. and Barbara Bezdek’s Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in Legal Process—get their strength from qualitative observations of the courtroom experiences of the poor. Pleading Poverty in Federal Court adds an empirical dimension to such participant-centered works. By pulling back the curtain on federal court practice and the high level of variation in what courts require of poor litigants, as well as their different standards for granting fee waivers, the article provides a valuable contribution to the literature on how the poor experience the law. Hammond shows how reforming a single element of civil procedure, standardizing federal in forma pauperis practice, can help open federal courthouse doors to the poor a bit more.
Scholarship that translates and connects one discipline to another is a special treasure. The need for this type of scholarship is especially great in immigration law. Immigration law is interwoven with many other disciplines, but immigration law scholars often are so occupied with the extreme complexity and immediacy of the legal discipline that it can be difficult to branch out. I’m selfishly fond of The Economics of Immigration Reform by Howard Chang because it does a great service to those of us who needed a lucid and approachable explanation of the economics behind immigration law reform. Professor Chang explains in detail why immigration restrictionists are wrong when they argue that less immigration makes economic sense. If less immigration is desirable, it is not for economic reasons.
Professor Chang uses economic theory to evaluate recent legislation proposed to restrict legal immigration. Along the way, Professor Chang examines two major economic studies that both concluded that immigration produces a positive fiscal impact, one from 1997 and one from 2017. In the process of using the studies to evaluate proposed limits on immigration, Professor Chang teaches us that the assumptions underlying any economic study affect outcomes.
The 1997 study by the National Research Council (NRC) adopted a baseline, “most reasonable” scenario using one set of assumptions and concluded that an average immigrant had a positive fiscal impact of $80,000 in net present value in 1996 dollars. The 2017 study by the National Academies of Sciences, Engineering and Medicine updated the NRC study. While both studies produced a range of estimates of fiscal impact based on various assumptions, the 1997 NRC study more definitively adopted a set of assumptions as “most reasonable.” The 2017 study did not do that. Even so, the 2017 study still concluded that immigrants have a positive fiscal impact. Using the same set of assumptions recommended by the 1997 study leads to a positive fiscal impact of $279,000 in net present value in 2012 dollars.
Why did the 2017 study take a more “agnostic” (P. 7) approach about adopting one set of assumptions as most reasonable? Professor Chang states that it “may be a response to the objections raised by the economist George Borjas,” (P. 7) who objects to the NRC’s “most reasonable” assumptions. Professor Chang is not a fan of the agnostic stance. He believes some of the assumptions allowed by the National Academies study are not appropriate, and he supports the NRC adopted baseline.
The treatment of public goods is one example Professor Chang uses to highlight the importance of examining the assumptions that underlie economic analyses of immigration. The cost of a public good does not rise with the size of the population and use of a public good does not prevent another person from using it. National defense is an example. All government services are not public goods. Services that are congestible, like roads, police services, and libraries, are not public goods. Professor Chang criticizes the National Academies study for presenting estimates of immigrant fiscal impact that treat public goods as congestible services. Professor Chang is not impressed with the National Academies’s justification for its presentation of public goods as congestible goods; the justification seems to undercut the concept of a public good, suggesting that public goods could be affected by population size. Even under the National Academies’s more conservative assumptions that treat public goods as congestible, however, immigration still produces a net fiscal benefit. (P. 10.)
What about the effect of immigration on the wages of native workers? The more conservative National Academies study concluded that the least skilled native workers (high school dropouts) may feel more negative effects of immigration compared to others, but that the negative effects tend to fade after 10 years. (P. 20.) As Professor Chang explains, the demand for labor fluctuates. Therefore, immigrants do not arrive and compete for a fixed pot of jobs. Also, native born and immigrants are “imperfect substitutes.” (P. 21.) They often do not compete for the same jobs and complement each other instead. Therefore, immigration does not significantly lower the wages of native workers.
Professor Chang concludes that, based on economic analysis, our immigration laws are unduly restrictive. Adoption of reasonable assumptions shows that immigrants contribute a positive fiscal impact and that immigration restrictions do not significantly lower the wages of native workers. Therefore, if fiscal impact were the only consideration, higher levels of immigration would be the natural policy result.
The reality, however, is that immigration policy is not formulated based on economic considerations alone, and immigration policy often diverges from the rational path. Professor Chang shows us a prime example of this by examining the RAISE Act, an immigration reform bill supported by President Trump. The RAISE Act aims to cut immigration across the board, which would work against economic interest. It also would eliminate pathways for younger immigrants, which is counterintuitive based on evidence that younger immigrants contribute more over the course of their longer lives in America. (P. 17.)
Professor Chang asks a very important question. If immigration is an economic win, “why not liberalize our immigration laws?” As far as economics is concerned, our immigration policies should be liberalized. Professor Chang’s article is helpful in allowing non-economists to understand why that is so and why immigration restrictionists should not be allowed to hide behind economic arguments.
“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.
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 Lives 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.) 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.)
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.
Cite as: Wendy Anne Bach, Hope
(November 9, 2018) (reviewing Amna Akbar, Toward a Radical Imagination of Law
, 93 NYU L. Rev.
405 (2018)), https://lex.jotwell.com/hope/
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
(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/
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
(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/
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.
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.
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. 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.