Yearly Archives: 2020
Sep 16, 2020 Tom SimmonsElder Law
In Access to Algorithms, Professor Bloch-Wehba unleashes both the First Amendment and FOIA (the Freedom of Information Act, along with its state counterparts) on algorithmic governance opacity. She argues that the law of access encompassed by FOIA and the free press clause can help promote a public debate of algorithmic decision-making by governments as well as provide avenues by which individuals–especially under-resourced individuals–might find redress for the sometimes catastrophic output of automated systems.
Algorithmic decision-making in the context of law enforcement (such as sentencing and bail) has been mapped by and Bloch-Wehba’s article touches on algorithmic criminal law determinations here as well. In addition, she unpacks algorithmic operations which affect government employees, specifically using “value-added assessments” to quantify teacher effectiveness, which has been challenged by teachers’ unions. But her attention to algorithmic denials of Medicaid benefits has heretofore received scant attention. Especially because elderly Medicaid applicants and recipients seeking long term care benefits are almost by definition under-resourced individuals, the opacity of algorithmic decision-making in this context deserves careful examination. But the very opacity of algorithmic operations which generate denials or reductions of public benefits presents a challenge for scholars as well as the citizens who bear the brunt of the automated decisions.
Governmental decision-makers tend to hold their algorithms close to their chest. Making matters worse, much algorithmic decision-making software is privately controlled. The trend is toward outsourcing. The private companies which develop the algorithms are obviously keen to retain their value and not simply leak their mechanics into the public domain. Secrecy is an even more acute problem when the algorithms themselves are outsourced to and controlled by private vendors. The problems of faulty decisions as well as bias embedded in the machine can be difficult to unearth and correct.
Bloch-Wehba examines two Medicaid examples in reported federal court opinions. In the first, APS Healthcare, Inc., a private “waiver administrator” slashed the Medicaid waiver benefits of a group of West Virginians with severe developmental disabilities. The company’s algorithm generated a budget which allocated benefits to individual Medicaid recipients on a year-by-year basis, using data from interviews and other assessment tools. The actual workings of the algorithm that slashed the plaintiffs’ benefits was proprietary. One plaintiff with cerebral palsy had her benefits cut from $130,000 to $72,000. As a result, she lost her community placement, declined, and became at serious risk to institutionalization.
Before an Administrative Law Judge, the West Virginia plaintiffs’ fair hearing was denied based on deference to the computer program–without investigation into the conclusions it had reached. Thankfully, the district court correctly perceived the procedural due process problems and reversed.
In a second Medicaid case arising in Idaho, plaintiffs challenged the decisions of a secret methodology to set individual budgets for home and community-based waiver benefits. In this case, the algorithm–“an Adult Budget Calculation Tool”–was government-sourced, but the state resisted disclosure of its methodology, claiming it was a trade secret. The state then offered a compromise: it would disclose the reasoning behind the plaintiffs’ benefit reductions but subject to a gag order that would prohibit redisclosure to anyone else. Although the plaintiffs ultimately prevailed, Bloch-Wehba identifies the invocation of a trade secret defense and the state’s “atomized disclosure” settlement offer as “highly problematic.” (P. 1279.)
After detailing the scope of the problem, Bloch-Wehba identifies a creative and effective solution. She emphasizes that the law of access provides a particularly useful tool in de-cloaking government methodologies to deny rights, property, or liberty. The law of access expands standing. It facilitates access to algorithms not only for the directly affected but also the general public–even scholars and journalists.
Here is a uniquely practical solution to a serious problem. One need not be a plaintiff to demand that algorithmic veils of opacity be lifted. She explains: “If the processes for government decision-making were already public, litigants would not have to fight tooth and nail to gain access to an explanation of why their benefits were slashed, their employment was terminated, or their release from prison was delayed.” (P. 1295.) To advance toward these practical ends, she maps the nuances of FOIA exemptions commonly in play in these sorts of contexts.
While undoubtedly practical, at the same time, Access to Algorithms resonates with foundational questions of value and justice. Although “algorithmic governance portends a new era in government decision-making, it must be accompanied by new forms of transparency to protect the vital role of public oversight in our democratic system.” (P. 1314.) Readers of her important article will surely agree.
Aug 10, 2020 Brian FarkasArbitration
Andrew B. Mamo,
Three Ways of Looking at Dispute Resolution,
54 Wake Forest L. Rev. 1399 (2019), available at
SSRN.
Advocates of alternative dispute resolution (ADR) often talk about the “ADR Movement” as if it were…well…an actual movement. We know what the phrase means, or at least we think we do. Since the 1970s, the popularity of extra-judicial mechanisms for conflict resolution–arbitration, mediation, negotiation, and restorative justice–has risen sharply. Over the same period, these procedures have become highly professionalized areas of study and practice. But is there a coherent “ADR Movement,” with a capital “M,” based upon a unified legal philosophy?
Not so much. In his comprehensive article, Three Ways of Looking at Dispute Resolution, Andrew Mamo carefully unravels the divergent philosophical strains that have supported the expansion of ADR over the past half-century. He explains the history of ADR against the broader backdrop of American legal and political history.
One of the reasons that this article is such a helpful contribution to the history of American civil procedure is the increasing centrality of ADR. Whether there is an “ADR Movement” or not, ADR’s constituent parts have become vastly more important in recent years. The general academic consensus has long been that trials are no longer the central means of conflict resolution in the United States. Some scholarly analysis suggests that well over 95% of all civil lawsuits end in settlement before trial. There are many possible explanations for this trend. Some point to judges taking a highly managerial approach to encourage settlement; others point to the increased professionalization of mediation services; and others point to the substantive benefits of arbitration over litigation for many types of commercial disputes. While criminal disputes present different sets of problems, scholars have observed both the increase in criminal plea bargaining (a form of negotiation), as well as the potential benefits of restorative justice mechanisms over traditional jury trials.
One might expect to find some sort of common denominator among these various trends. But as the title of his article suggests, Professor Mamo traces modern “ADR” to three distinct political philosophies.
First, he identifies a “liberal, state-centric, rights-based approach.” This approach looks at the relationship of ADR processes to traditional litigation, particularly in the context of court-annexed mediation and arbitration programs that primarily aim to lighten overcrowded court. Mamo traces this branch to the 1976 “National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice” convened by Chief Justice Warren Burger where Professor Frank Sander famously introduced the concept of a multidoor courthouse–the idea that courts should “sort” disputes almost like a Harry Potter-esque sorting hat. Some disputes would go to the mediation room, others to the arbitration room, and others to courtrooms for trial. In this conception, ADR serves primarily to support and alleviate traditional legal processes; it exists parallel to litigation.
Second, he identifies a “neoliberal, individualistic, interest-based approach.” This branch originates from the economic theories of the 1980s that emphasized free market capitalism and private bargaining in the absence of governmental or judicial oversight. Mamo ties the “win-win” negotiation strategies promulgated by Professor Roger Fisher (co-author of the celebrated book Getting to Yes) to broader beliefs in value maximization and economic efficiency that dominated the era. In this conception, ADR serves primarily to benefit the individual disputing parties; it exists outside of the legal system.
And third, he identifies an “anti-liberal, communitarian, relationship-based approach.” This branch originates from the belief that community-centered solutions to conflict–in the form of neighborhood justice centers, restorative practices, and victim-centered strategies–can create normatively better outcomes than either law-centered solutions or private-party centered solutions. Mamo traces this view even further back in American history, to early utopian and religious communities in New England, which favored systems of community norms over legal rules. In this conception, ADR serves as a more wholistic, socially conscious alternative to litigation; it exists not to benefit the government or the disputing parties, but the community.
Mamo shows how, today, ADR tries to rely on all three of these three divergent justifications: existing to help the court system, the parties, and society at large. In some ways, the “ADR Movement” rejects legal norms and procedure, preferring party autonomy and individual interests. Parties choose their own , agree to their own set of rules, and essentially determine the manner in which their conflict will be resolved. In other ways, ADR embraces court-centered or community-centered values. If a dispute goes to arbitration, that’s one fewer case for the public courts to handle on the taxpayers’ dime. If a dispute is sent to some sort of restorative practice, that theoretically benefits the broader community.
This article shows the ideological diversity within the so-called “ADR Movement.” If you attend an ADR conference, you’re likely to see Professor Mamo’s article come to life in different corners of the meeting room. You’ll find corporate lawyers drafting mandatory arbitration clauses. You’ll find self-described “peacemakers” and “conflict healers.” You’ll find in-house lawyers designing employee mediation programs to keep disputes private. You’ll find community leaders who privately resolve neighbor disputes. Big Law arbitration partners. Administrators of court-annexed arbitration programs. Hostage negotiators. Divorce mediators. Ombudsmen. All these folks can somehow fit under the “ADR” umbrella, albeit through divergent philosophical justifications.
In some ways, Professor Mamo is perfectly situated to tell this complicated story. First, he’s a trained historian, which allows him to place ADR in its full context. And second, he’s a Clinical Instructor in the Negotiation & Mediation Clinical Program at Harvard Law School, an institution that has had a disproportionate impact on the development of ADR dating back to scholars like Fisher and Sander. (He will join the faculty of Northern Illinois University College of Law next year). Harvard is one of a handful of law schools–including places like Cardozo, Missouri, Ohio State, Oregon, and Pepperdine–that invested heavily in the teaching and study of private dispute resolution in the 1980s and 90s. Sometimes labeled as “alternative” dispute resolution and relegated to “skills” courses in some corners of legal academia, ADR has become absolutely central to the ways in which American law is experienced. Indeed, these institutions were far ahead of the curve in gauging its importance to the curriculum.
ADR’s rise over the past five decades has been remarkable. But Professor Mamo elegantly reminds us that the field’s rise is best understood not necessarily as a unified “movement” and rather as a confluence of aligned interests or even historical accident. ADR contains multitudes.
Jul 24, 2020 Bethany BergerNative Peoples Law
What can Federal Indian Law offer public law as a whole? Supreme Court justices have famously dismissed Indian Law cases as “chickenshit” and “pee wee” cases, and scholars have worked for generations to justify the meager recognition of tribal sovereign interests within public law. Maggie Blackhawk’s wonderfully generative Federal Indian Law as Paradigm, however, convincingly argues that Indian law, far from an idiosyncratic backwater, is central to the history of public law in the United States and can provide valuable lessons for framing its future.
First, Blackhawk masterfully synthesizes the work of many scholars (including her own work on the Petitions Clause) to show the role federal Indian affairs has played in the history of government power. Indian affairs were central for the founding generation, figuring prominently in the debates over the Constitution and the early work of Congress and the Executive Branch. Concerns about foreign interference with tribal diplomacy, for example, inspired the first understanding that the Senate’s advice and consent role with respect to treaties included only approval after the fact rather than participation in negotiations.
Indian affairs also shaped many of important early contests between the federal government and the states. Fletcher v. Peck (1810) was the first case in which the Supreme Court struck down a state statute, and the state and presidential resistance to the Court’s invalidation of Georgia law in Worcester v. Georgia (1832) almost upended the ship of state. Indian affairs also contributed to the modern form of federal power. The executive branch first exercised extensive administrative powers by the mid-1800s in implementing treaties and Indian affairs statutes, while cases like Johnson v. M’Intosh (1823) and United States v. Rogers (1846) provided early judicial assertions of extraconstitutional national power. For some of the examples in the paper more work is necessary to show that treatment of federal power in Indian affairs actually influenced later public law doctrines and structures. But altogether Blackhawk powerfully makes her case that colonizing tribal nations and lands was not just America’s other original sin, it was and remained a constitutive governmental and judicial proving ground.
The next section of the paper is even more original. Blackhawk argues that understanding the paradigmatic status of federal Indian law can provide an important new frame for understanding and addressing injustice. As many have written, the black-white, slavery-freedom, segregation-integration paradigm of race relations has stymied understanding of racism in America. An equal rights framework, moreover, has limited legal efforts to address it and contributed to a conceptual separation between rights and structure in constitutional law.
Blackhawk argues that a federal Indian law paradigm can address these problems. First, the most egalitarian moves in federal Indian law have always been structural and have always ensured that tribal nations have distinct forms of power rather than simply equal rights. Indeed, well before claims of “reverse discrimination” were used to undermine civil rights, “[n]ational constitutional rights [served] as a tool to further the colonial project against Native peoples.” (P. 1798.) Federal Indian law and policy also reveal a long history of recognition of distinct forms of power that the standard paradigm might condemn as creating unequal rights. Recentering federal Indian law as paradigmatic, Blackhawk argues, might therefore normalize and encourage legal protection for collective rights, such as union organizing, or obligations of consultation and representation, rather than individual remedies.
This is a long, incredibly rich, article, and one could quibble with some of its assertions. For example, although the modern Supreme Court often stands in the way of efforts by Congress and the Executive to recognize tribal power, this has not always been the case, and the Court long played an essential role in preventing state and executive overreach. So federal Indian law provides no more evidence that the congressional and executive branches are better “suited to protect against majority tyranny” than any other field does. (P. 1796.) Second, blanket statements such as “[b]y contrast to other ‘minority’ communities, rights are feared in Indian Country rather than sought,” (P. 1859), elides Blackhawk’s own rejection of a structure-rights dichotomy and overlooks the important role that rights have played for Native people as well. But again, these are quibbles, and do not detract from the contributions of the piece.
In short, Federal Indian Law as Paradigm is a wonderful accomplishment, one that can provide a new basis for understanding the public law grounding of federal Indian law, and the federal Indian law grounding of public law as a whole.
Jul 10, 2020 Wendy Anne BachPoverty Law
At the time that I am writing this Jot, in late May 2020, the unemployment rate has climbed above 14%; COVID-19 has once again exposed persistent racial health disparities, and in the wake of the murders of George Floyd, Ahmaud Arbery, and Breonna Taylor, communities across the U.S. are rising in protest. Real too is that our country’s small (and largely regressive) provision of economic support, to those whose tentative hold on security was ripped out from under them this Spring, has all but dissolved. Given this searing new reality, one might think that counsel from scholars about the absurdity and cruelty of placing the burden of economic desperation on poor communities themselves would no longer be needed. Who would think, today, that the very communities of color reeling the most should shoulder the cost of their economic survival? Surely we are thinking more radically and more generously than that. But history does not counsel optimism. We know that neoliberal inequality functions through a pernicious combination of potent racialized myths and vigorous punitive and extractive legal systems.
So in this jot, written at this particular moment, and as one very small response to all that is unfolding around us, I want to highlight two pieces of scholarship that lay bare the viciousness of one aspect of those neoliberal systems: Tonya Brito’s The Child Support Debt Bubble and Abbye Atkinson’s Rethinking Credit as Social Provision. Both pieces critique social welfare policy that puts the burden of economic security onto the shoulders of those least able to sustain it. Without question, both pieces are exquisitely well done, and if this were normal times, my jot would focus entirely on what these papers argue and their undeniable strengths. And certainly all that is in order, but what I want to focus on, after summary and praise, is the relationship between private debt and public violence.
Brito’s The Child Support Bubble builds on years of qualitative research on the reality of child support collection from poor, predominantly Black men. Brito merges qualitative and quantitative evidence with rich legal knowledge and incisive analysis to easily convince her reader that our systems levy absurd amounts of debt onto the shoulders of poor Black men who will never be able to satisfy that debt. Policies that charge exorbitant interest rates and refuse to lower child support amounts, even when fathers are incarcerated, lead to an absurd and inescapable debt. This leads—much like criminal system debt—to constant involvement of punitive agencies in the lives of these men. It leads also to the further privatization of social welfare support in the form of rules that transfer child support payments not to the mothers of these men’s children but to the government agencies that provide meager amounts of welfare support. In the final section Brito runs a simulation, marshalling the numbers and rules to convince us that the whole thing is rigged to make sure that these fathers will never, ever escape. Brito’s melding of story, legal analysis, structural unpacking and quantitative data leaves her reader convinced that our child support system is nothing more than a trap—both for the poor fathers who will never escape the debt and for the poor mothers and children who will never get the economic support they need. And not only is it a trap, but it is a distraction, one that “obscure[s] the fact that our social welfare system does not sufficiently meet the needs of poor families.” (P. 987.)
Atkinson’s Rethinking Credit as Social Provision, reveals another false and distracting trap. Like the very best of critical scholarship, Atkinson makes visible that which is somehow both totally obvious and somehow hidden. She delivers several of these insights. First for credit to work, a borrower has to borrow from her wealthier future self. Second, credit as social welfare policy assumes that the giving of credit will result in that richer future self. Third, the possibility of higher future income depends not really on the mythic bootstrap-pulling capacity of the borrower but instead on the overall strength of the economic opportunities available to that particular borrower. Fourth, viewing credit as social welfare policy is unrealistic “for low-income Americans in light of wage stagnation and persistent insecurity with respect to employment, income and expenses.” (P. 1148.) And finally, when borrowers default the system acts extractively – pulling whatever wealth exists out of poor communities and into the hands of higher income lenders. Race, of course, has everything to do with this. Extractive debt systems target poor African American and Latinex communities. Despite all this, however, policy makers, both on the right and the left, have come to focus on credit as a significant tool in what Atkinson labels a privatized form of social welfare provision, but Atkinson ultimately views that as a harmful distraction. She urges that “it is time for credit to leave the conversation around social provision for low-income Americans . . . and [to] redirect our collective focus toward the fundamental, persistent, and underlying challenge of ever-increasing economic, and consequently social, inequality.” (P. 1162.)
Ultimately both Brito and Atkinson share a similar message. A social welfare policy that wields myths of individual rights and responsibilities to mask the ways in which structural racism limits opportunity; a social welfare policy that pulls families apart; a social welfare policy that has more to do with punishment than support, and a social welfare policy that maintains and strengthens inequality by pulling wealth out of those communities – is no social welfare policy at all. We need instead, as both counsel, social welfare policy that directly addresses economic inequality. But we need to remember this is not just about ineffective social welfare policy. It is about racial subordination, maintained by violence. How? Because when racialized myths and distraction fail to maintain inequality, neoliberalism turns to state violence. To see this link clearly we only need remember Walter Scott, an African American man killed by a white police officer in April of 2015 in South Carolina. Scott had been jailed multiple times for failure to pay child support. On that day, once again, there was an outstanding warrant for his arrest. We cannot know what was in Scott’s mind as he ran from the officer that day, but he no doubt knew that for him, the best-case scenario was jail and the worst was his death at the hands of the state. And that death can all too easily be traced back to debt.
Wendy Anne Bach, Private Debt and Public Violence, JOTWELL (July 10, 2020) (reviewing Abbye Atkinson, Rethinking Credit as Social Provision, 71 Stan. L. Rev. 2093 (2019) and Tonya Brito, The Child Support Debt Bubble, 9 UC Irvine L. Rev 953 (2019)), https://lex.jotwell.com/private-debt-and-public-violence.
Jun 19, 2020 Felix MormannEnergy Law
David B. Spence,
Regulation and the New Politics of (Energy) Market Entry, 95
Notre Dame L. Rev. 327 (2019), available at
SSRN.
A burgeoning literature explores the siting challenges, equity issues, and justice concerns associated with energy project development. The important role that NGOs like the Sierra Club, 350.org, or the Environmental Defense Fund play in the ensuing conflicts is widely acknowledged, yet the dynamics of NGO mobilization are relatively underexplored. Professor David Spence’s fine article, Regulation and the New Politics of (Energy) Market Entry, goes a long way toward closing that gap, offering critical insights into NGO strategy, framing, and coordination.
Professor Spence starts by laying out the tensions resulting from the U.S. energy economy’s reliance on private investments to build and maintain the infrastructure necessary to meet the American public’s demand for energy services. These investment decisions are guided by statutes and regulations that reflect the evolving prioritization among three fundamental objectives that make up the so-called energy trilemma: affordability, reliability, and environmental performance. Historically, the first two objectives dominated but, more recently, climate change and other environmental prerogatives have emerged as the driving forces behind much energy investment.
Next, the article surveys the wide range of regulatory barriers to entry facing new energy projects in the form of frequently fragmented licensing regimes across municipal, state, and federal levels of governance. As Professor Spence astutely observes, the horizontally and vertically overlapping nature of this licensing process offers NGOs and other opposing parties a plethora of points for intervention, enabling conflicts to play out along multiple fronts simultaneously. The intensity of conflicts over energy infrastructure siting, the article argues, has been amplified by two related “centrifugal forces”: the rise of digital connectedness and the growing hyperpolarization of our society. Feeding off each other, both phenomena foster the heightened media presence and emotional intensity of recent conflicts over energy projects, such as the Keystone XL pipeline or the Cape Wind project.
At the heart of Professor Spence’s article lies a data set that comprises more than three hundred energy projects that became the targets of opposition from over four hundred NGOs between 2000 and 2017. It is a testament to the author’s open-minded and balanced thinking that these projects run the technological and environmental gamut, from oil-and-gas exploration to pipelines to LNG terminals, from coal-fired power plants to nuclear reactors to wind and solar installations. The same attention to diversity and detail carries over to the way the article distinguishes among various types of NGOs, from local and state to national and international organizations.
Professor Spence uses his impressive data set to test a variety of hypotheses geared toward better understanding the tactical and issue-related decision-making of NGOs. The findings are compelling and offer novel insights into NGO strategies. The article highlights three specific patterns to support its thesis that polarization and digital interconnectedness have exacerbated the frequency and intensity of energy project siting conflicts in the twenty-first century.
First, mass mobilization around risk-based arguments emerges as the default strategy for NGO opposition to energy project development. Claims about the economic or environmental justice impacts of projects, for example, were far less likely to be part of NGO messaging and strategy. Professor Spence persuasively argues that risk-based anchoring of NGO campaigns is a likely product of the ease of instantaneous communication to a large audience facilitated by our growing digital interconnectedness.
The second pattern observed in the data cautions readers to take NGOs’ risk-based communications with a grain of salt, at least for certain types of projects. In the context of wind farms, smart meters, transmission lines, fracking operations, and nuclear power, many NGOs made claims about associated health risks that are not supported by scientific consensus. Professor Spence points out that such risk-related overrepresentations are significantly more prevalent among local NGOs, compared to their national counterparts.
Both the general propensity of NGOs to mobilize around risk and the tendency to misrepresent health risks observed among some NGOs may, according to Professor Spence, reflect a natural adaptation to today’s “post-truth” politics. In this brave new political landscape, increasingly insulated communities of belief have supplanted societally representative deliberations in search of truth.
The third pattern discernable from the data suggests a growing degree of coordination among NGOs, likely facilitated by our digital connectedness. Tactical coordination would explain the similarity between local and national NGOs’ strategies related to litigation, political action, and issue arguments across a range of projects. There are, as Professor Spence notes, limits to this kind of collaboration among (and even within) NGOs, such as when local chapters of a national NGO oppose clean energy infrastructure because of a project’s local environmental impacts, placing themselves in direct conflict with the parent organization’s general approval of and possible campaign for clean energy projects.
With Regulation and the New Politics of (Energy) Market Entry, David Spence has taken a major step toward helping us understand the strategic decision-making behind NGO opposition to energy infrastructure development. Given the quality of his data set and his analytical acuity, we can only hope that this piece will be his first of many forays into the world of NGOs. I for one would love to see what insights Professor Spence’s data can offer on the way other factors may influence NGO decision-making and strategy. Does it matter, for example, whether a project is sponsored by local as opposed to national or international firms? What impact, if any, do different models for public participation during the licensing process have? Do macroeconomic shocks, such as the financial crisis, correlate with discernable changes in NGO decision-making and strategy? I could go on but trust that my point is made: more, please!
