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Once upon a time, litigators faced a clear choice among competing dispute resolution procedures. You could litigate. You could arbitrate. Or you could mediate. Early generations of dispute resolution scholars imagined these processes as being wholly distinct. Frank Sander, during the famed 1976 Pound Conference, envisioned a “multi-door courthouse” where disputes could be neatly grouped—with the ease of a Harry Potter-esque sorting hat—into the most appropriate resolution mechanism.
Over the past couple decades, these once-discrete processes have become more muddled. This is particularly true for complex commercial and international disputes. Processes converge and exist parallel to one another across jurisdictions. Parties may litigate the scope of an arbitration clause or the enforceability of an award. They may mediate one branch of a dispute while arbitrating another. They may also mix and match aspects of each procedure with blended processes like “med-arb” or “arb-med.”
Domestic and international court systems have both responded to, and shaped, this complicated reality. Pamela Bookman is among the clearest analysts of these trends in judicial innovation. Her new piece, Arbitral Courts, analyzes exactly what its title suggests: public courts that adopt many of the features of private arbitration. Oxymoron? Maybe. New reality? Definitely.
Bookman begins by observing that arbitration is traditionally considered to be a private dispute resolution mechanism meant to replace courts for disputing parties. The conventional wisdom has been that “courts and arbitration stay in their lanes.” But that thinking has shifted. Specialized domestic and international courts have begun to adopt qualities of private arbitration, responding to parties’ desire for confidentiality, speed, procedural flexibility, and subject matter expertise. Arbitral courts “shift and blur traditional boundaries between public and private adjudication [and] reveal the power of procedural innovation and forum shopping as forces of institutional change[.]”
Bookman offers numerous examples of these arbitral courts, ranging from Delaware, to Singapore, to Dubai. Consider the Cayman Islands Financial Services Division of the Grand Court (“FSD”), created in 2009, which has jurisdiction for business-related disputes where the amount in controversy exceeds $1.2 million. The FSD’s judges include four full-time judges with some specific background in business law, and three part-time judges, including attorneys for international law firms. Its procedural rules are designed by “an elite group of lawyers” who understand the needs of the transnational companies that choose to incorporate in the Cayman Islands. The FSD also has a fairly liberal policy on sealing its dockets (generally between one-third and half of all cases), meaning that disputes can be largely adjudicated in private.
Or consider the Netherlands Commercial Court, which opened its doors in January 2019. That court hears “trials” in panels of three judges (plus a law clerk) using procedural rules substantially similar to the International Bar Association Rules on the Taking of Evidence in International Arbitration. These Rules permit party-driven customization of evidence and process, as well as confidentiality—features associated with private arbitration rather than public adjudication. Moreover, the Netherlands Commercial Court charges significant fees compared to a normal litigation (€ 15,000), essentially creating a specialized court for clients able to pay top-dollar.
Or finally, consider an attempt at innovation in Delaware. Delaware’s Court of Chancery is the most significant court in the United States for corporate disputes. The Court’s judges, known as chancellors, are widely considered to be the leading experts in this area of law. In 2009, Delaware’s legislature enacted a program whereby parties could pay heightened fees to arbitrate, rather than litigate, their disputes before a chancellor. The proceeding and award would be confidential, even though the arbitrator was a sitting judicial officer. (While it’s common for retired judges to serve as arbitrators for-hire, such conduct is typically prohibited of sitting judges under ethics rules). The Delaware scheme was challenged by an open government group, and in 2013, the U.S. Court of Appeals for the Third Circuit held that it violated the right of qualified public access guaranteed by the First Amendment. But nevertheless, the program attracted the attention of court systems designers around the country.
What do these various examples share? A mixing and matching of attributes associated with public litigation and private arbitration. Publicly-funded judicial officers, rendering decisions in confidential proceedings, using rules designed by corporate attorneys, with procedures that can be tailored to individual cases based on the parties’ consent.
Bookman goes beyond describing these various courts, offering potential opportunities and areas for concern. One of the article’s central observations—and warnings—is the complicated nature of arbitral courts’ legitimacy. Normally, courts get their legitimacy from the state, while arbitrators get their legitimacy from the parties’ bilateral contract. Arbitral courts are a hybrid; their legitimacy comes from both the parties’ consent to their jurisdiction, and the state’s establishment of their structure. Bookman warns that this duality carries an inherent tension. Parties’ desire for arbitration-like confidentiality, for example, hampers the ability of these courts to develop public and predictable precedent. Over time, such secrecy could lessen the arbitral courts’ legitimacy in the eyes of litigants and taxpayers.
Arbitral Courts fits nicely into a sub-genre of procedure scholarship that examines not just the workings of discrete dispute resolution mechanisms, but their confluence. For example, it pairs nicely with Hiro Aragaki’s The Metaphysics of Arbitration, Thomas Stipanowich’s Arbitration: The ‘New Litigation’, or Jackie Nolan-Haley’s Mediation: The ‘New Arbitration.’ These scholars recognize that ADR procedures are becoming harder to differentiate from “regular” civil procedure, especially for transnational disputes.
“Alternative” dispute resolution is often relegated to the elective corners of law school curricula. But the reality on the ground, from the perspective of international litigators, is that ADR is inextricably interwoven into civil procedure. From the moment a client’s dispute arises—or even earlier, when a contract is drafted—lawyers must understand the potential mechanisms for resolution. For several years, Bookman’s scholarship has explored how court systems, far from remaining static, have responded to competition from private ADR. In this way, she is an intellectual heir to Frank Sander himself, albeit with a more international flair. Undoubtedly, court systems at home and abroad will continue to mix, match, and muddle dispute resolution processes in the years ahead. This article will provide these innovators with ideas and models—as well as some nagging notes of caution.
Jeanne L. Schroeder, Taking Misappropriation Seriously: State Common Law Disgorgement Actions for Insider Trading
(Feb. 11, 2021) Cardozo Legal Stud. Rsch. Paper No. 625, available at SSRN
The disgorgement remedy strips a defendant of unjust profits. Disgorgement is gaining prominence as a civil remedy across a varied body of substantive laws, including intellectual property, contracts, fiduciary duties, as well as in government enforcement litigation to battle fraud and corruption. Disgorgement’s provenance ties to restitution and the equitable accounting for profits remedy. Even as memory of its equitable history fades, modern and novel applications of disgorgement flourish. Disgorgement relies on restitutionary principles because its primary goal is to undo unjust gain. It also deters opportunism and disincentivizes misconduct.
But if not applied properly, the danger is that disgorgement may punish, which is explicitly not a goal of the law of unjust enrichment and restitution. The Securities and Exchange Commission (SEC) has faced, and continues to face, an array of criticisms for aggressive uses of its disgorgement remedy pursuant to statutory authorization. Such concerns led to several Supreme Court rulings requiring adjustments to the SEC’s approach to disgorgement—most recently in Kokesh v. SEC, 137 S. Ct. 1635 (2017) and Liu v. SEC, 140 S. Ct. 1936 (2020). Congress subsequently amended the remedy to solidify the SEC’s authority to seek disgorgement, though the clarification oddly appears to classify the statutory disgorgement remedy as legal rather than equitable. This congressional revision is housed in a massive piece of unrelated legislation, the 2021 National Defense Authorization Act (“NDAA”), which Congress passed over a presidential veto. A parallel expansion of disgorgement remedies by the Federal Trade Commission (FTC) faced increased judicial scrutiny and ultimately a rebuff by the Supreme Court in AMG v. FTC, No. 19-508 (April 22, 2021) (narrowly interpreting the statute’s injunction power as not encompassing FTC authority to seek equitable disgorgement), with congressional restoration of full disgorgement power anticipated.
Much is changing rapidly, and it is unclear how successful the SEC will be at navigating new strictures while advancing enforcement goals. To be clear, the landscape is complex. In a forthcoming article, Taking Misappropriation Seriously: State Common Law Disgorgement Actions for Insider Trading, Professor Jeanne Schroeder seeks a solution to the complexities. She advances private state common law actions for disgorgement as a cleaner way to remedy insider trading violations. The potential advantages of private state-based litigation with application of the disgorgement remedy are worth serious consideration. And the notion of parallel pursuit of state common law remedies may well be a wise approach for other governmental enforcement regimes.
To lend credence to this proposal, Professor Schroeder argues that a state common law disgorgement action would align with the Supreme Court’s “largely property-based theory of insider trading.” Regardless of the asserted narrative fit, Professor Schroeder offers six compelling reasons why an action at common law for restitution would avoid many of the complexities of federal insider trading enforcement actions. For example, the Supreme Court’s insider trading jurisprudence requires fraud, violation of a fiduciary duty, as well as misappropriation of information. Under state law, each of those elements provides an independent ground for private redress.
The common law of restitution therefore streamlines the inquiry to “the person to whom the duty is owed or the owner of the information who should have a cause of action.” In highlighting such improvements, Professor Schroeder provides a useful, thorough overview of federal and state insider trading jurisprudence. According to Professor Schroeder, state common law of restitution would simplify remedying insider trading wrongs. Specifically, a state disgorgement approach would eliminate the Supreme Court’s multi-factor standard for insider trading and provide much greater flexibility in proof thresholds. For restitution and disgorgement, state common law standards are less onerous than federal statutory requirements and the Supreme Court’s strictures. Still, federal law leaves space for concurrent jurisdiction and the continuation of common law efforts to disgorge improper gains.
Of course, to suggest that this alternative approach could replace the SEC’s enforcement regime would be extreme. Professor Schroeder wisely notes that her solution of private disgorgement actions should supplement SEC enforcement, not supplant it entirely. The SEC would remain responsible for a host of remedial efforts including injunctions, bars, suspensions, penalties, and more. Meanwhile, state courts could continue to develop the contours of the common law of restitution and the important remedy of disgorgement.
The force of Professor Schroeder’s approach is that it offers viable alternatives with much simpler proof requirements. Additional benefits may flow from a state common law restitution approach. Such benefits are not the focal point of the article but include the potential avoidance of Liu constraints. For example, a state law approach would obviate the mandate to present evidence of concerted wrongdoing in order to obtain joint and several disgorgement liability as well as the Supreme Court’s directive to return funds to victims, both of which present unique challenges in insider trading cases.
Still, it is worth considering whether the Supreme Court’s commands are wise policy. Though not bound by those strictures, state common law decisions would be free to engage in parallel tightening. But any such efforts can vary by state and would tie to the goals of restitution and unjust enrichment rather than the language of federal statutes. No matter what the underlying frame of the cause of action and remedy sought, courts must balance the law’s mission against concerns about overreach, plaintiff windfalls, and punitive results.
Professor Schroeder emphasizes a core restitution principle: that her approach will restore the private claimant to the status quo ante. In some of these cases though, courts should conduct more refined analysis to evaluate whether the application of restitution works if the property—material nonpublic information—is of less value when it is not traded than when it is. In some cases, the inside trader’s proceeds may not be “the fungible equivalent of personal property previously transferred to the other party,” because material nonpublic information that has not been traded upon does not (yet) have monetary value to the issuer. Still, as Professor Schroeder’s work demonstrates, meaningful and powerful remedies for wrongdoing such as insider trading are worthy state law aims. Thus, Professor Schroeder’s work will still resonate as the state common law continues to honor the goals of restitution while working in the shadows of federal statutes.
Professor Schroeder’s scholarship is vital in that it reminds readers to consider forgotten remedies and lesser worn paths. Federal enforcement should not be the sole vehicle to strip gain, deter wrongdoing, and benefit victims. If private litigants can effectively pursue remedies on the state level, the SEC may be able to direct its resources to more challenging or important targets. Not only might those paths be easier in the pursuit, but the seeker may also more likely reach the ultimate goal of disgorging the improper gain from insider trading.
Most in legal academia would consider citation of their law review article in a judicial opinion an honor. However, most probably also remember Chief Justice Roberts’ 2011 comment that an article about “the influence of Immanuel Kant on evidentiary approaches in Eighteenth Century Bulgaria or something…isn’t of much help to the bar.” The Chief Justice’s comment may leave you wondering how often judicial opinions have cited law review articles and what factors might make your article into a rare unicorn. Mr. Detweiler answers these questions and more in May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals.
Mr. Detweiler has compiled a list of state and federal court citations to legal academic journals from 1945-2018 and mapped them as a proportion of all reported opinions and by total number annually. He tracks the ebb and flow of citations through the years and makes interesting observations about what may influence increases and decreases in citation frequency. But he doesn’t stop there. His research then compares citation frequency from 1970-2018 of articles in Harvard Law Review and Yale Law Journal with flagship journals from sample schools in each tier of the U.S. News rankings. The article also includes a scan of the history of academic law journals, the first citations of journals, and the explosive growth of journals starting in the 1970s.
The article begins with a brief history of student-edited law reviews and their relatively slow acceptance by the judiciary. Mr. Detweiler notes Chief Justice Taft’s complaint about his colleagues “‘undignified’ use of law review material in their dissents.” But change was already underway. The next Chief Justice, Chief Justice Hughes, labeled law reviews as the “fourth estate of the law.” Mr. Detweiler then moves on to examine all citations of academic law journals from 1945-2018 in reported state and federal cases. Graphs included in the article illustrate changes over time. The percentage of cases citing law reviews shows a rise from 1.8% in 1945 to almost 5% in the mid-1960s/1970s with a dip mid-decade of about 0.5%. Mr. Detweiler notes that the peak of 4.9% is a 172% increase in citing cases over the rate in 1945. After the peak in the mid-1970s, the percentage of opinions citing articles declines over the next two decades. Since the mid-1990s, the percentage has leveled out some, fluctuating between 1.5% and nearly 2%, reaching 1.8% in 2018. A similar graph models the growth in absolute numbers of opinions citing law review articles with a similar increase and then decline. Mr. Detweiler attributes a portion of the percentage decrease in the early 1980s to the number of reported opinions increasing more quickly than the number of citing cases.
Mr. Detweiler posits several possible causes for the decrease in the percentage of cases citing law reviews from its heyday in the mid-1960s/1970s to its current level. Two of the most compelling are technological advances and changes in the content of academic legal scholarship. Both Lexis and Westlaw launched in the mid-1970s leading to easier access to case law, which was also growing in breadth. Academic law reviews were incorporated more slowly into the legal research systems and didn’t have more expansive coverage until the mid-1990s. Judges and their clerks could easily access case law (especially binding precedent) directly instead of relying on scholarly works.
Mr. Detweiler also highlights a shift, beginning in the 1970s, at higher-ranked law schools away from more traditionally doctrinal scholarship toward interdisciplinary work and new areas of scholarship that were not as directly applicable to the everyday work of attorneys and judges. This point becomes important when we view differences in citation rates between flagship law journals at higher-ranked and lower-ranked law schools.
Part II of the article examines how the percentage of citations varies from elite law schools (represented by Harvard and Yale), top 14 schools, Tier I, Tier II, Tier III, and Tier IV schools. (Mr. Detweiler explains the selection of the exemplar schools in the methodology.) The data shows, unsurprisingly, a strong prestige factor in the law journals cited in cases. Harvard Law Review was the clear leader with a significantly higher percentage of citations than the next highest, Yale Law Journal. Although the prestige factor is still apparent, the rate of opinions that cited Harvard Law Review or Yale Law Journal has steadily declined from about 34% in 1970 to approximately 14% in 2018. Similarly, the percentage of opinions citing top 14 law schools fell from 1970 to 2018. During the same period, the percentage of opinions citing Tier 1 law journals stayed relatively stable. The rates of opinions citing Tier II and Tier III schools had more extreme variations from year to year, but the trend has been a gradual increase. Similarly, opinions citing Tier IV flagship law journals have seen a gradual increase over time while still the smallest percentage. The elite advantage is still present but is not as great as it once was.
Why has the gap narrowed? Mr. Detweiler points to some of the same factors highlighted in the decline of the percentage of reported opinions citing academic law journals. One of these is the rise of computer-assisted legal research (CALR) and the ease with which researchers can search and retrieve articles from a pantheon of academic law journals, not just the elite journals. A related point is the explosion in the number of academic law journals. Mr. Detweiler points out that 132 journals were indexed by the Current Index to Legal Periodicals in 1970, but today Lexis and Westlaw have approximately 1000 titles in their law journal databases. He hypothesizes that the increase in the number of journals is diluting the percentage of citing cases that any one journal is capturing.
While discussing judicial citation of academic legal journals, Mr. Detweiler contextualizes changes in citation patterns within changes in the legal academy and the court system. He explains in detail his well-reasoned methodology for each stage of his research, including documenting Lexis search strings longer than most of us have ever contemplated. His article is an interesting foray into academic legal scholarship and its influence, or lack of influence, over judicial precedent.
Author’s Note: Mr. Detweiler provides supplemental tables along with the article. Available tables are 1) Citations to all law reviews ; 2) Top 14 Law Reviews; 3) Citations to Tier I and Tier II law reviews; and 4) Citations to Tier III and Tier IV law reviews.
The federal government manages tens of millions of acres of land across the United States. That land includes some of the most iconic landscapes in the country – such as Yosemite, Yellowstone, and Everglades National Parks. It also is land that provides habitat for endangered species, ecosystems that support communities and wildlife, resources such as timber and minerals for economic development, and more. Forests on federal lands have been at the center of the wildfire crisis enveloping California and the Western United States. Given these overlapping demands and their importance, these lands are a fertile source for conflict, and much litigation and political rancor.
Yet there are other ways to resolve that conflict – engagement between various interests (“stakeholders”), and federal, state, local, and tribal governments about how to manage the lands and achieve these conflicting goals. This kind of stakeholder collaboration has received relatively little treatment in the legal literature – and Karen Bradshaw’s article is a vital contribution simply because of its efforts to cover that gap. Supported by the Administrative Conference of the United States, Professor Bradshaw undertook an impressive assessment of how a wide range of federal agencies – focusing on, but not limited to, the public lands – use collaboration among different stakeholders to help manage conflicts over public resources.
One reason stakeholder collaboration has received so little attention historically is that it does not lend itself easily to research, especially research based on statutes, regulations, and caselaw. While Professor Bradshaw identifies many statutes that mandate or authorize collaboration, they often each have their own unique processes. Many collaborations are not embodied in statutory or regulatory provisions. Understanding them is time-consuming, requiring reviewing copious agency files and attending many meetings. And understanding how they work – how they really work – requires getting the trust of participants to explain why they are part of the collaborations, what they hope to accomplish, and how they see the process working. To gain even a basic understanding of this process required all of Professor Bradshaw’s hard work on this article and the broader research project – and again, that alone warrants recognition.
The article is mostly descriptive – Professor Bradshaw attempts to create a clear and consistent definition of stakeholder collaboration, to articulate how it differs from other processes by which a federal government agency engages with other entities, and to tentatively assess its strengths and weaknesses. Again, given the wide range of possible forms and the difficulty of collecting data, these achievements alone are noteworthy.
Professor Bradshaw’s assessments of the strengths and weaknesses of the tool are also very helpful. She notes that collaborations can be beneficial in terms of helping agencies gather information they might not otherwise receive, and of building political support for difficult decisions that agencies might make. She also notes real issues around equity: Because participants are not paid by the federal government for their participation, only a limited number of people have the ability and inclination to spend hours during a weekday on a regular basis talking in a conference room. Thus, many participants are necessarily representatives of larger organizations, with their participation part of their employment responsibilities. As Bradshaw notes, this will generally mean that lower socio-economic status communities and diffuse interests will be underrepresented in these processes. And even where there are established groups that could afford to participate, many will not because of suspicions of how the process will unfold – emphasizing the importance of trust in making these collaborations function.
Another issue that Professor Bradshaw notes is the uneasy fit of these collaborations with existing law and regulations. Many are specifically structured to avoid the requirements of the Federal Advisory Committee Act (FACA). Professor Bradshaw quotes a government official stating that the collaboration requires bending agency regulations and policies, but that the official supports doing so.
Professor Bradshaw concludes with a thoughtful framework to help agencies assess when they might want to take advantage of stakeholder collaborations – drawing on her rich expertise from her research.
Public land management agencies are a key user of stakeholder collaboration, but as Professor Bradshaw notes, they are not the only ones who use them, and they are far from the only agencies faced with difficult, localized conflicts over government decisions. As the United States’ political system has polarized politically, these tools may be important to help manage that polarization. As Professor Bradshaw notes, they can provide important forums for stakeholders to listen to each other, and to help bridge deep disagreements. Her research can provide an important foundation for policymakers and academics to explore whether and how to draw more on the tool in a wide range of fields.
But Professor Bradshaw’s work also highlights a key limitation of the tool, and one that Congress might well want to consider if it continues to rely so heavily on it. The differential ability of stakeholders to participate in collaborations may interact in problematic ways with the willingness of agencies to bend laws and regulations to facilitate collaborations – the result may be agencies bending the law to benefit those who have more ability to participate. In some ways, this pattern may replicate age-old concerns about the capture of agencies by key interest groups. If collaborations simply replicate that outcome, then their promise will have been lost.
There is much to consider in Professor Bradshaw’s work – and much more to build from. She has already developed a companion piece on the topic, and I look forward to more writing from her on this important topic.
In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.
Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion.
In Bostock, Grove contends that Justice Gorsuch’s majority opinion exemplified “formalistic textualism” because it focused intently on the statutory term “because of sex” and what that term means in the context of sexual orientation-based discrimination. By contrast, Grove characterizes both Bostock dissenting opinions as engaging in “flexible textualism”—because the dissents relied on atextual considerations including public views about homosexuality in 1964, other statutes enacted after Title VII, and the “far-reaching” consequences of construing Title VII to cover discrimination based on sexual orientation.
After elaborating the differences between “formalistic” versus “flexible” textualism, Grove provides some historical context for the Bostock case, tracking both the rise of textualism as a response to purposivism and the early judicial treatment of Title VII and sexual orientation claims based on a purposivist approach. Her point is that purposivism does not always tend toward “progressive” outcomes, and textualism does not always favor “conservative” ones. It is a point that others have made, but that bears repeating because it often gets lost in the focus on the U.S. Supreme Court, where the conservative Justices also tend to be the biggest proponents of textualism.
In the end, Grove endorses “formalistic,” as opposed to “flexible,” textualism—arguing that “formalistic textualism” is better at constraining judicial discretion and producing a predictable result, both rule of law values to which textualism aspires. But consistency with textualism’s own avowed interpretive goals is not Grove’s primary reason for championing “formalistic textualism;” rather, she has in mind her own unique normative goal for textualism: Grove argues that textualism can and should function in a manner that protects the legitimacy of the judiciary, by mitigating the ideological pressure judges naturally feel to rule consistently with their political preferences. Grove situates this new normative goal for textualism in Article III of the Constitution, which she reads to call for judicial independence and apolitical decisionmaking. Conversely, she notes that Article II injects politics into judicial appointments, by giving the appointment power to the President and Senate—and urges that a more cabined form of textualism could serve to alleviate the tension that inevitably exists between judges’ Article II-ensured political leanings and their Article III obligation to be independent.
Grove’s analysis of Bostock’s multiple textualisms is insightful and provocative. And her efforts to promote judicial independence and greater predictability in statutory interpretation are admirable. I am less enamored of her push for courts to adopt a more formalistic approach to textualism. (As I have explained elsewhere, I have doubts about whether a “formalistic” textualism can truly constrain judges in the manner Grove envisions and favor a more pluralistic approach to statutory construction, at least as a check on judges’ inevitable personal biases). That said, Grove’s recommended formalistic textualism approach—and particularly her Article III legitimacy rationale—is highly original and well-reasoned, and is worthy of attention from statutory interpretation scholars. Grove’s Article III arguments appear to be part of a larger project to promote judicial legitimacy, but that does not detract from the utter novelty of her normative take on textualism, or the incisiveness of her exposition of the multiple textualisms at work on the modern Supreme Court.
In short, Which Textualism? is a thought-provoking article and a highly enjoyable read, and it should be on the to-read list of anyone interested in Bostock, textualism, or questions about the judicial role and/or legitimacy of the Court.
Focusing on Black American lives during the Covid-19 pandemic of 2020, UDC Law Professor Etienne C. Toussaint’s latest article is a tour de force, which provocatively yet persuasively argues that U.S. history, law, and society iteratively reconstitute socioeconomic inequality through “collective rituals of white supremacy that both create and reconstitute anti-Black racism and redeem white privilege.” (P. 5.) For Toussaint, the catastrophe of pandemic illuminates the fragility of U.S. democracy in two significant ways: not only has the pandemic unmasked “the adverse impact of decades of inequitable laws and public policies in low-income Black communities across the United States[,]” but it has also spotlighted “America’s racially biased, violent, and supervisory policing culture[.]” (P. 3.)
These themes are well-known to scholars of Critical Race Theory (CRT) and poverty law in the United States. Toussaint’s contribution feels exciting and noteworthy because of his skillful synthesis of multiple literatures within legal scholarship and across the disciplines, including inter alia, anthropological theory on rituals; critiques of rights-based discourse (domestic and international) for reifying abstract liberal ideologies of equality, liberty, and universalism; and an adroit evaluation of Martha Fineman’s theory of human vulnerability (and Amartya Sen’s theory of development as freedom) in light of the collective experience of Black Americans under white supremacy.
I particularly enjoyed Toussaint’s review of Critical Legal Studies scholarship that deconstructed domestic “rights-based discourse as a tool to dismantle social and economic inequality” (P. 26) and CRT scholarship that demonstrated “the importance of rights to the freedom struggles of oppressed and marginalized populations, including the plight of Black Americans from chattel slavery to Jim Crow segregation to mass incarceration.” (P. 28.) I also appreciated his argument for advocates to draw upon a reconstructed human rights discourse—tempered by the social struggles of Black Americans—to challenge the normative underpinnings of contemporary U.S. public policy and articulate an emancipatory vision of democracy.
Toussaint’s most important theoretical contribution, however, is his dreadful yet cogent analysis of the ideology of white supremacy. Tousaint uses the lens of the late religious studies scholar Catherine Bell’s theorization of “the ritual, in materialist terms, as a bridge between tradition and an ever-changing social world, a structural mechanism that navigates the tensions between the internal moral self and the external sociopolitical order” (P. 9). He then elaborates:
The historic and ongoing subjugation of Black people in America is forged by discrete “ceremonies” of racial ritualization that use race to construct notions of “domination and resistance within the arena of the social body.” In so doing, rituals of white supremacy create “white sacred time” by enabling historic anti-Black ideas to be “born again,” interrupting modern sociopolitical life with racist traditions that “renew, regenerate, and re-energize their participants, infusing the present with holy meaning.” (P. 10.)
One has only to recall photographs and similar representations of past instances of openly anti-Black racism (e.g., lynching and other practices of racialized and sexualized violence against Black Americans before and after Emancipation) and then compare them to one’s experience or memory of today’s (barely concealed) anti-Black racism (e.g., the incessant killing of Black Americans by police or vigilantes) to feel sick at how apt Toussaint is to identify that public (and private) anti-Black violence recreates “white sacred time,” infuses the present with an unholy meaning, and thereby redeems the ideology of white supremacy for the twenty-first century.
Informed by, and valuing, Black American lives, and their literary distillations like Ralph Ellison’s 1952 novel, Invisible Man, Toussaint discerns and fills a lacuna in U.S. political and sociolegal theory—sacrifice—in particular “the power of institutional arrangements to erase aspects of humanity from our view entirely, such as the involuntary sacrifices that sustain racial hierarchy, and the everyday rituals of white supremacy.” (Pp. 44-45.) With these historical and contemporary realities in mind, Toussaint concludes by urging Americans to engage in “a radical (re)imagination of American democracy, one that wrestles with the erasure of Black sacrifice from the American consciousness and overcomes the ubiquity of racial ritualization that produces invisible citizens.” (Pp. 24-25.)
In closing, I come away from Of American Fragility musing over how to perform different rituals—capable of infusing the present with the sacred significance of interracial justice and other dimensions of intergroup justice and social solidarity.
This is serious scholarship and well worth reading.
Rest in Power
Amadou Diallo (Sept. 2, 1975 – Feb. 4, 1999)
Sean Bell (May 18, 1983 – Nov. 25, 2006)
Oscar Grant (Feb. 27, 1986 – Jan. 1, 2009)
Trayvon Martin (Feb. 5, 1995 – Feb. 26, 2012)
Rekia Boyd (Nov. 5, 1989 – Mar. 21, 2012)
Shantel Davis (May 26, 1989 – Jun. 14, 2012)
Eric Garner (Sept. 15, 1970 – Jul. 17, 2014)
Michael Brown Jr. (May 20, 1996 – Aug. 9, 2014)
Laquan McDonald (Sept. 25, 1997 – Oct. 20, 2014)
Akai Kareem Gurley (Nov. 12, 1986 – Nov. 20, 2014)
Tamir Rice (Jun. 25, 2002 – Nov. 23, 2014)
Natasha McKenna (Jan. 9, 1978 – Feb. 8, 2015)
Walter Lamar Scott (Feb. 9, 1965 – Apr. 4, 2015)
Freddie Gray Jr. (Aug. 16, 1989 – Apr. 19, 2015)
Clementa C. Pinckney (Jul. 30, 1975 – Jun. 17, 2015)
Cynthia Marie Graham Hurd (Jun. 21, 1960 – Jun. 17, 2015)
Susie Jackson (Jan. 28, 1928 – Jun. 17, 2015)
Ethel Lee Lance (Aug. 30, 1944 – Jun. 17, 2015)
Depayne Middleton-Doctor (Dec. 15, 1965 – Jun. 17, 2015)
Tywanza Sanders (Jul. 23, 1988 – Jun. 17, 2015)
Daniel L. Simmons (Jul. 16, 1940 – Jun. 17, 2015)
Sharonda Coleman-Singleton (Sep. 24, 1969 – Jun. 17, 2015)
Myra Thompson (Dec. 5, 1955 – Jun. 17, 2015)
Sandra Bland (Feb. 7, 1987 – Jul. 13, 2015)
Alton Sterling (Jun. 14, 1979 – Jul. 5, 2016)
Philando Castile (Jul. 16, 1983 – Jul. 6, 2016)
Keith Lamont Scott (Feb. 3, 1973 – Sept. 20, 2016)
Stephon Clarke (Aug. 10, 1995 – Mar. 18, 2018)
Botham Shem Jean (Sept. 29, 1991 – Sept. 6, 2018)
Breonna Taylor (Jun. 5, 1993 – Mar. 13, 2020)
George Floyd (Oct. 14, 1973 – May 25, 2020)
And countless other Black Americans whose lives matter.
Cite as: Marc-Tizoc González, Visibly Fragile America
(January 4, 2021) (reviewing Etienne C. Toussaint, Of American Fragility: Public Rituals, Human Rights, and The End of Invisible Man
, 52 Colum. Hum. Rts. L. Rev.
__ (forthcoming, 2021)), https://lex.jotwell.com/visibly-fragile-america/
The New White Flight makes two significant contributions to our understanding of race and education. First, it argues that white parents chose to send their children to segregated, disproportionately white schools. This choice is reflected in white residential preferences for areas where “pricing-out mechanisms” ensure that the local school is disproportionately white. (P. 254.) This racially-motivated choice holds “even when school quality is controlled for, meaning that whites tend to choose predominately white schools even when presented with the choice of a more integrated school that is of good academic quality.” (P. 236.) Second, it shows how charter schools give white parents a way to act on their preference for majority white schools even within school districts where only minority of students are white. Charter schools and other school choice programs, by enabling white parents to act on their general preference to avoid schools that are predominantly Black or Latino, facilitate the creation and maintenance of “white charter school enclaves” within larger diverse school districts. (P. 262.)
It would be tempting to write off both contributions with a yawn. A cynic might ask what is new about white parents wanting white schools and school choice enabling educational segregation? That, after all, is the story of how white parents reacted to Brown v. Board of Education. But by forcefully insisting that segregated education today is a result of white parents choosing to avoid predominantly Black schools, Professor Wilson challenges race-neutral explanations for why whites prefer disproportionately white schools. And by laying out the ways charter schools, through their regulatory framework as well as their educational philosophies, cater to white parents seeking to send their kids to disproportionately white schools, Professor Wilson shows the negative consequences of educational choice programs. Ultimately, the article is an eye-opening and sobering look at how the choices of white families further educational inequality at a societal level and even within school districts. It is a valuable read for anyone interested in poverty law, education policy, and property law, but the audience that could most benefit from the article arguably are well-educated urban white parents.
What is most powerful about The New White Flight is that it pulls no punches. Even though the article gives a long list of reasons why white parents might opt to send their kids to predominantly white schools, none of these ultimately excuse those parents. Connecting Milton Friedman’s theoretical justifications from 1955 for a market- or choice-based approach to education to the desire of whites to avoid desegregation, Professor Wilson emphasizes that when white parents “exclude by failing to choose to associate with students of color, the consequence is a form of segregation that is palpable and harmful to students of color.” (P. 251.) Choice is inseparable from exclusion given the racial dynamics of cities and of public education.
Similarly, though it is tempting to categorize educational segregation as merely a consequence of residential settlement patterns along race and class lines, in other words to treat it as a natural result of where people live, Professor Wilson does not buy this distinction. Whites cannot claim refuge in the argument that the local school just happens to be whiter than other schools in the larger urban area. Instead, The New White Flight recognizes that the residential and educational choices of white families together are part of the same story: “whites as a collective are choosing racially segregated schools . . . whites are choosing school segregation.” (P. 253.)
The charter school phenomenon that the article focuses on are those charter schools that are notably whiter than the demographics of the school district overall. Professor Wilson breaks charter schools into four different types. Two types–traditional charter schools that focus on rigorous, back-to-basics education and conversion charter schools that are basically failed public schools flipped into a charter school arraignment–tend to have more students of color and low-income students. The other two types–prestige charter schools that offer progressive or project-based educational approaches and neighborhood preference charter schools–tend to have whiter and wealthier student populations. As Professor Wilson argues that these last two types of charter schools “insulate white students from large numbers of students of color and allow whites to engage in white flight without residential mobility.” (P. 273.)
One example of how this works detailed by Professor Wilson that is particularly troubling is in Georgia, where the charter school legislation states that charter schools must give preference to kids within the proposed school’s attendance zone but allows those proposing the school to define their own attendance zone. (P. 272.) White parents or charter schools serving them can, as a consequence, create charter schools that target predominantly white neighborhoods and that by design will have a mostly white student population. If all Professor Wilson’s article did was call out Georgia’s legislation, it would have been a contribution and a sign of how far whites continue to go to use the tools of the state to self-segregate.
Professor Wilson is not writing in a vacuum. There are other important works that look at how the choices of whites, especially white parents, contribute, directly and indirectly, to racial subordination. What makes The New White Flight worth reading even for those people well versed in matters of educational inequality and the reproduction of racial hierarchy is how unflinching it is. It gives no quarter to white parents whose kids are in predominantly white schools. Speaking as a white parent married to a Latina, it can therefore be uncomfortable to read, in part because the choices made while parenting–including where to live and what school to attend–can feel like the most personal and most individual. But as the article shows, the choices white parents make collectively can have tremendous negative impacts on students of color and lower-income students.
The Law of Rescue connects aiding migrants to the body of law governing rescue generally. Professor Shalini Bhargava Ray proposes a new theoretical framework for the law of rescue based on her examination of prosecutions for migrant rescue. Her framework de-emphasizes economic interests and lifts up considerations of liberty and dignity.
While “[t]he law of rescue was not designed to express, promote, or protect the human dignity of beneficiaries or the liberty of rescuers,” (P. 623) Professor Ray argues that it should be redesigned to do so. Her new framework would balance three considerations: (1) the rescuer’s liberty to engage in the rescue; (2) the beneficiary’s need for rescue; and (3) the potential third-party harm flowing from a consensual rescue.
The law of rescue cuts across many substantive areas of law. Professor Ray identifies tort law, contract law, criminal law, public international law and maritime law, in addition to immigration law, as providing standards for rescue. Professor Ray examines how these substantive areas treat rescue in various circumstances and the historical motivations behind those rules. She is particularly interested in how the law of rescue treats both the person needing rescue and the (potential) rescuer.
Professor Ray finds that the law surrounding rescue mostly has developed around economic interests and commercial development. Existing theoretical frameworks are anchored in and dominated by the concerns of economic elites: economic efficiency and property rights. It is a mistake, according to Professor Ray, to ignore dignity interests of the rescued and liberty interests of rescuers. Because these considerations are not prominent, “the law of rescue leaves vast areas of important rescue work exposed to prosecution.” (P. 623.)
Migrant rescue, for example, can be subject to prosecution. Federal law prohibits transporting or smuggling an individual but also includes a prohibition on harboring. Harboring includes inducing or encouraging an authorized individual to remain in the United States. Some courts have interpreted the prohibition on inducing or encouraging to include any kind of assistance, including free housing and food.
The government does prosecute under the harboring laws. Professor Ray details the 2018 arrest and trial of Scott Warren. Mr. Warren was charged with harboring counts after he provided food, water, and shelter to two migrants in Arizona. While Mr. Warren was acquitted of the harboring charge, his arrest and trial serves as a powerful example of what is at stake for rescuers when rescue is illegal.
Applying her new framework to the rescue of migrants, Professor Ray concludes that prohibiting rescue in this context degrades both liberty and dignity. If the law protects the right not to rescue, as it does in torts, then it should equally promote the interests of those who want to rescue.
To Professor Ray, the rescuer’s liberty interest in rescuing connects to the freedom of association, both as a constitutional norm and a moral value. Professor Ray argues that this liberty interest is strongest when a rescuer seeks to prevent death, as is frequently the case in aiding individuals who recently crossed the US border illegally. The liberty interest is strongest in this situation because the individual already has crossed the border (the rescuer is not leading the border crossing) and the rescuer is not affecting the ultimate decision whether the individual will be able to remain legally in the United States. Instead, the rescuer is promoting another human’s life and welfare while satisfying the rescuers own moral values. In such a scenario, the beneficiary’s dignity risks are high, as survival is at stake. As Professor Ray states, “[p]ermitting those migrants who do cross the border to survive the journey is the least the law can do.” (P. 658.) Consideration of the risk of third-party harm incorporates externalities. This risk is low, and, in any case, outweighed when the migrant’s life is at stake. Professor Ray considers externalities such as littering, trespassing on private land, damage to private land, property crimes, personal crimes, and the protection of sovereignty.
Professor Ray’s article is an important contribution to a growing trend to link immigration law to other areas of law. Traditionally immigration law has been seen as an outlier and is often left out of conversations about mainstream legal developments. This has been changing somewhat in administrative law and constitutional law. The Law of Rescue builds another immigration law bridge.
The Law of Rescue also is an important contribution because it identifies and highlights the importance of dignity interests in the law. Dignity interests often are overshadowed by economic interests, but Professor Ray reminds us that they are just as important. In Professor Ray’s new theoretical framework, dignity is a factor among three to be considered. In some ways, her proposal is in fact quite modest; one might argue that dignity should be the overriding consideration. Her proposal seems revolutionary, however, because dignity as a concept is waning in immigration law. Reimagining the law of rescue is a good place to start to inject dignity back into how the law treats migrants.
Not every day do we encounter a work of research that enables us to study the law through a whole new lens. Indeed, over the last fifty or so years, legal scholars have discovered new ways to apply well-established bodies of knowledge to the research of law, helping us to both give normative meaning to existing rules and formulate new ones. No better example of this “interdisciplinary revolution” comes to mind than the world of law and economics, which in all fairness should be deemed the world of law and microeconomics. Prior to the publication of Yair Listokin’s book, Law and Macroeconomics, we as researchers have applied economic insight to legal research solely by examining specific actors’ response to incentives provided by law—a microeconomic perspective.
Listokin’s book challenges this paradigm with an invitation to consider how Macroeconomic thinking should also affect the way we understand and interpret the law, when unique conditions call for such an interpretation. It is an invitation to broaden our perspective: away from the world of local incentives intended to optimize behavior of specific players, into ways we can harness the law to address problems such as unemployment, total output, and economic growth.
Particularly relevant today, Listokin’s book shows that when countries and economies face the terrible days of recession—and they have already exhausted the possibility to stimulate the economy through traditional monetary and fiscal policies—making use of the law for macroeconomic purposes provides a powerful tool, albeit one that might contradict more traditional forms of legal analysis. Consider one of the examples given in chapter 11 of the book, in which a real estate developer intends to build a block of apartments and is facing push back from a local neighbor worried of noise and depreciation of his home’s market value. Such examples have been discussed tirelessly in legal literature over the last decades, and every law student who graduated from the basic Law and Economics introductory course can recite Coase’s and Calabresi & Melamed’s seminal work on transaction costs, and property and liability rules; in short, a microeconomic analysis requires the judge to consider several factors in making the decision of granting the plaintiff an injunction. Among these considerations, the judge may attempt to balance the harm imposed upon the plaintiff by the defendant with the cost imposed on the defendant by refraining from harm.
Alternatively, the judge may realize that the parties will likely reach a deal—ensuring the neighbors’ entitlements are well-protected and that transaction costs (broadly defined) between the parties are small enough. It is possible the court will be convinced that granting an injunction is efficient, under the assumption that the neighbor will be able to set a price tag on the harm the project will impose on him.
The important thing to notice is that this analysis rests upon the assumption that to achieve an efficient decision, the court needs to take into account only the interests and incentives of the two parties in dispute, as these are the only interests and incentives relevant to the case. At this point, Listokin asks us to imagine such a case coming before the court not in ordinary economic times, but during a recession—when unemployment is high, and interests’ rate is already at its lowest levels. In such grim economic reality—with construction projects already a scarce commodity—postponing the construction project by way of an injunction will probably lead to the unemployment of the developer’s employees. This in turn will further diminish overall consumer spending and negatively affect growth. It is apparent that the parties cannot be trusted to account for such massive costs, as they do not directly internalize them. It follows that the court cannot simply leave it for the parties to reach an efficient outcome even if transaction costs between them are low, and must take a much more active role in settling the dispute for the benefit of all involved. It is therefore wise for the judge—from a macroeconomic perspective, rather than a microeconomic one—to favor defending the neighbors’ entitlements by use of a liability rule, namely ordering the developer to pay damages and continue with the construction of the project in order to stimulate the economy.
One can imagine several ways that one would apply the ideas in Listokin’s book to judicial decisionmaking. Going back to the earlier example, one might argue the court can take into account unemployment considerations through the familiar term of negative externalities, which already made its way into conventional legal thinking. By granting an injunction, the argument will follow, the court will allow the neighbors to externalize costs to the developer’s employees. The judge is therefore obliged, even by way of ‘traditional’ microeconomic thinking, to consider the interests of the employees when giving its ruling. Although tempting, I find such attempts to conceptualize Listokin’s work unhelpful because they mask first and second order effects. Listokin’s point is not that there is a second-order externality which policy makers fail to account for and that not accounting for it distorts the analysis. My colleague Dick Markovitz has been correctly arguing something similar to that for decades. Rather, Listokin argues that in times of recession, these Macro externalities dwarf any gains and losses traditional, parties-focused, microeconomic analysis of law has been analyzing. Turning a blind eye to this critical macroeconomic element will result, in our example, in a poor understanding of the merits of liability rules during a recession and why such rules should be applied by the courts. This is exactly what differentiates between a microeconomic and a macroeconomic analysis of the law, and a major part of what makes Listokin’s book so exciting.
It is with the last point, the appliance of macroeconomically-merited rules by the court, with which I would like to end this review. It must be admitted that Listokin’s intellectually challenging proposal to integrate macroeconomic notions into the ruling of the law might pose an institutional problem: how will judges, most of them lacking in economic education, be able to apply this knowledge into their rulings? Listokin proposes that whenever a law is promulgated as an open-ended legal standard lawyers should educate the judge so that she takes into account macroeconomic considerations, or else we might conclude it has erred in its decision.
Although Listokin’s proposal is an elegant solution enabling us to create legitimacy for the introduction of macroeconomically efficient decisions into the law, it is still questionable whether judges will know which decisions are macroeconomically efficient. I would like to offer a different approach to this problem. In my view, the solution lies in crafting certain laws as rules rather than standards; These will be “on-the-shelves” laws, taking effect whenever they are macroeconomically called for—that is, mostly in times of recession, as certain economic criteria are met (such as unemployment levels or negative growth rate). The laws, articulated as rules, will aim to achieve macroeconomic goals by directly instructing the court on how it should make its ruling; legislation will instruct courts—under specified circumstances—to grant damages rather than injunctions, discharge debtors’ debt (as also discussed on chapter 11 of the book), modify utility regulation rules, deny petitions aimed against government spending that would otherwise be inhibited by procurement rules, disregard regulations normally imposed by zoning rules that postpone spending and growth, or apply whichever other macroeconomic policy seen fit by the legislator. That policies change automatically in bad times is not foreign to our legal system. The Unemployment Insurance Extended Benefits program provides extended benefits using automatic triggers such as state-wide unemployment rates. FEMA can use the Disaster Relief Fund to alleviate the suffering and damage which result from disasters once the President has declared an emergency or a major disaster had occurred. Legislatures could provide similar stand-by authority to courts.
But then, the question that must follow is whether such laws can be used other than in times of recession. Indeed, Listokin himself admits that the high complexity involved with trying to implement macroeconomic ideas within the law might render such at attempt efficient only in times of despair, after fiscal and monetary policies have ran their course. Yet the ideas first brought forth in Listokin’s book ignite our imagination as to how we can design the law to address other issues macroeconomic scholars concern themselves with—such as price levels, economic growth, and more. While Listokin’s book focuses mainly on recession, its ideas offer a new platform for exploring such macroeconomic subjects and open a door for a whole new field of law and economics research.