Kellen Zale, When Everything is Small: The Regulatory Challenge of Scale in the Sharing Economy
, San Diego L. Rev.
(forthcoming 2016), available at SSRN
There has been a lot of literature about the so-called “sharing” economy lately, in particular focusing on the conflicts over whether and how that economy will fit within the existing regulatory systems at the local, state, and federal levels. And at first blush, the question of whether Uber drivers should be regulated as taxis or not doesn’t seem to have much of a connection with the standard concerns of environmental law—particularly the regulation of large industrial sources of pollution.
But as Kellen Zale’s excellent article points out, the problems that the sharing economy poses to existing regulatory systems are ones that we have seen before, and ones that we will see again. Zale notes that the sharing economy poses regulatory challenges precisely because of its scale of a large number of small activities—thousands and thousands of individual drivers working for Uber or Lyft, or of homeowners renting through Air BnB. Large numbers of individually small activities are incredibly difficult to regulate effectively, and that regulation can impose substantial social costs. As a result, the law has traditionally exempted many small scale actions from regulation. On the other hand, the accumulation of all of these individually small actions can impose significant harms on neighbors, communities, and the environment. For instance, the congestion and noise impacts of large numbers of Air BnB rentals have been a source of major complaint in some tourist communities. Zale also identifies how the sharing economy is but one example of this phenomenon—a growth of the impacts from individually small activities to the point at which regulation is required—and discusses how it can be discerned in a range of areas, including landlord-tenant law.
I particularly enjoyed Zale’s efforts to identify solutions to the challenges posed by the sharing economy—options including co-regulation (in which the private industry is part of enforcement efforts in cooperation with the government), the use of private standards, and simple fee structures. While Zale certainly does not exhaust the range of possible options, her efforts are an important starting point for developing policy responses.
While Zale’s work focuses on the sharing economy, I think the issues she identifies, the questions she asks, and the policy ideas she develops will be important for environmental law far beyond the sharing economy. The future of the next century will be increasingly a story of rising human pressures on our planet as a result of the accumulation of billions of individual decisions about how to use resources and what lifestyles to live. In major urban areas in the United States, much current air pollution is the result of activities as small as filling gasoline tanks in cars, painting houses, dry cleaning clothes, and burning wood in fireplaces. Some of these challenges can be covered by upstream regulation (e.g., reformulating paints to reduce emissions, more efficient gas tanks). Others will require more direct intervention in individual activities (e.g., enforcing requirements on separating recycling materials from trash, restricting the use of fireplaces). Ensuring that these regulations will be politically palatable and fair in the burdens they impose on individuals will require the development of many creative solutions along the lines Zale develops. I am glad she has helped start that conversation.
For undocumented immigrants, deportation is a constant looming threat. Given the harsh and broad categories of things that an immigrant can do to become deportable, the unfairness of the deportation adjudication system, and the devastating consequences of deportation, it makes sense that immigration law scholars focus on the phenomenon of deportation. Nathalie Martin, whose primary scholarly focus is not immigration law, reminds immigration law scholars that, unfortunately, there are many problems to explore beyond deportation.
Martin explores themes of scarcity by reporting on what she learned through a qualitative study of 50 undocumented immigrants in New Mexico. The study, funded by the National Conference of Bankruptcy Judges, investigates the banking and credit habits of undocumented immigrants through a snowball sampling technique. In Survival in the Face of Scarcity, Martin uses data from the study to explore how issues of scarcity are compounded for a population without legal status. As Martin explains, her findings “show a perfect storm” (P. 109) where individuals with limited rights are fearful to assert any legal rights they have.
Scarcity means having less than one needs. Martin adopts Sendhil Mullainathan and Eldar Shafir’s work on scarcity theory to help frame her study results. In her study population, Martin recognizes the bandwith tax (P. 111) discussed by Mullainathan and Shafir. The “drastic economic scarcity” (P. 114) of her subjects clearly was taking its toll, mentally and emotionally, especially in terms of the ability to cope with unplanned expenses. This economic scarcity itself was not surprising; , more surprising to Martin was the discovery that her subjects categorized unplanned expenses differently than she did. To her subjects, job loss was an expected event. Martin concluded that creating a budget as an undocumented immigrant “just doesn’t work.” (P. 119.)
After exploring how scarcity affects her study population, Martin argues strict immigration laws that allow no hope of regularizing status, the threat of deportation, and ineffective consumer protection laws create a scarcity tornado that is difficult to escape. Martin’s subjects know that they are vulnerable. They know that their lack of legal immigration status means they do not have a level hand in economic transactions or in employment relationships. This makes them hesitant to exercise any legal rights they may have outside of immigration law, either informally (for example, complaining about a billing error) or more formally through the courts.
Participants in the study were asked “if they feel comfortable using the court system to right a wrong.” (P. 130.) Only 32% answered yes. For 42% of the study participants, court was not an option, and 26% were not sure if they would use the court system. Participants expressed fear of deportation or an acceptance that a lack of legal status means one should not expect fair treatment as reasons not to pursue a legal claim. This means that fear of deportation (even if wholly unrelated to a potential legal claim) and a general sense of second-class status keep the individuals in Martin’s study from vindicating the legal rights that they do have in the employment, contract, and landlord-tenant contexts.
Interestingly, despite the scarcity in which they live, participants in Martin’s study expressed reluctance to accept government benefits. Undocumented immigrants are ineligible for most kinds of government aid. Even when an individual or someone in the individual’s mixed status family might be eligible for a benefit, Martin reports that the study participants expressed a strong preference to make it on their own.
Martin’s study reminds us that being an undocumented immigrant is not easy. This may seem like a simple lesson, but it is one that bears repeating. While Martin’s study group is only a small slice of the undocumented population, Martin’s study helps to rebut misleading political discourse that promotes a narrative that it is uncomplicated to be undocumented in the United States. Of all the challenges identified by Martin, the one that perhaps should be most disconcerting to law professors is a grudging acceptance that the vindication of legal rights is not practical. This is a major problem beyond deportation. Martin’s study prompts us to ask whether this is an acceptable status quo.
And here is where immigration advocates, policymakers, and scholars will step in with their expertise. The immigration laws of the United States are badly in need of reform. That reform must include a path to legalization for undocumented immigrants. Only then will Martin’s study participants be able to begin to escape the scarcity and vulnerability that negatively impacts their lives and the lives of their U.S. citizen relatives.
Cite as: Jill Family, Problems Beyond Deportation
(January 6, 2017) (reviewing Nathalie Martin, Survival in the Face of Scarcity: The Undocumented Immigrant Experience
, 58 Ariz. L. Rev.
103 (2016)), https://lex.jotwell.com/problems-beyond-deportation/
Professor Daniel Hatcher’s new book opens up new, fertile, ground for poverty law scholarship and critique. The book contributes not only to our understanding of how “cooperative” federalism—which is a crucial part of many anti-poverty programs—works in practice but also the impact that state budget shortfalls can have on the most vulnerable members of society. The Poverty Industry shows the myriad ways that states, in collusion with private companies, misuse money meant to help the poor, primarily by diverting federal matching funds from their intended purposes into the general fund. Hatcher’s three main examples—taken from the foster care, Medicaid, and child support programs—highlight the perverse incentives that lead state agencies to take actions that directly contradict their mandate in order to provide states with additional unrestricted revenue.
With the support of private companies contracted to maximize money collected either from the federal government or from the poor themselves, states are neglecting and, worse, directly harming whole groups of those with the greatest needs. As Hatcher shows states are taking social security, even survivor, benefits from children in the foster care system while acting as the childrens’ “representative payee.” (Pp. 65-110.) To game federal Medicaid payments, states use shell games that involve falsely inflating state Medicaid contributions on paper–using a variety of techniques from creating fully refunded bed taxes on hospitals to making elevated payments to providers–that are immediately kicked back to the general fund. (Pp. 111-42.) With the assistance of private contractors, states aggressively pursue child support payments and then, in the name of “cost recovery,” divert what little money is collected from the kids who should benefit to the state budget. In their aggressive pursuit of child support the states effectively ignore both the “best interests of the child” standard and the often destructive consequences to the often fragile relationship between fathers and mothers. (Pp. 143-79.) The Poverty Industry ends by giving other examples of how states and municipalities seek to profit off the poor, ranging from drugging the elderly to reduce expenses at state nursing homes to paying for basic services such as courts and policing through fees and fines. (Pp. 183-206.) In the wake of the shooting of Michael Brown in Ferguson, there has been increased attention to how such revenue generation tactics, in the context of racism and the criminalization of poverty, can harm whole communities. Hatcher makes a compelling case that state agencies, in their quest to generate revenue for themselves or for the general state budget, have lost sight of their mission to help those in need.
Though the book does include in a bit too much unnecessary repetition (it could probably be twenty pages shorter), by combining numerous examples of how funds are systematically and wrongly taken from the poor with insightful analysis linking the chosen examples, Hatcher has exposed previously underappreciated features of society’s antipoverty programs. Hatcher’s proposal for how to rein in “the poverty industry” is well-supported by the many examples and is fairly straight-forward: “We can all disagree about the best way to help vulnerable populations. And we will. But we all should be able to agree that when aid funds are generated with specific intent to help those in need, those funds should be used as intended.” (P. 207.) Although such a proposal seems fairly modest, if implemented it would involve numerous agencies at the state and federal levels and would result in a significant increases in funds that are not only ear-marked for the poor but actually reach them. It also, in keeping with the book’s focus on real world examples, is a proposal that could find enough political traction to be implemented.
Let me end by noting that The Poverty Industry illustrates how expansive “poverty law” can be as an organizing concept. Hatcher could have given the book a different title—The Problem with Cooperative Federalism or Ripping off the Federal Government—but as he shows, these state schemes ultimately are harming the poor. Even though some of the examples are well known, such as the difference in support for poor families versus foster care families, The Poverty Industry offers a wealth of new examples for most poverty law readers. Through FOIA requests, Hatcher was able to learn a great deal about the inner workings of the companies tasked with extracting as much money as possible from the federal government and from poor people and about the sketchy connections between these companies and state agencies. As with most books about poverty, The Poverty Industry is not a joy to read—on its surface it goes into considerable detail on a range of poverty programs and beneath its surface lurks the pain of those harmed by the practices the book details—but it is a book well worthy of attention and quite an achievement for Professor Hatcher.
Cite as: Ezra Rosser, Robbing the Poor
(November 23, 2016) (reviewing Daniel L. Hatcher, The Poverty Industry: The Exploitation of America’s Most Vulnerable Citizens (N.Y.U. Press
, 2016)), https://lex.jotwell.com/robbing-the-poor/
Sara K. Rankin, The Influence of Exile
, 76 Md. L. Rev.
(forthcoming 2016), available at SSRN
The discourse of poverty law in the United States is on the rise. Following the Great Recession of December 2007 to June 2009, the odd yet telling disparagement of “law and poverty” by the late Antonin Scalia in September 2008, and the Occupy Wall Street protests that erupted into public consciousness in September 2011, poverty law scholars have published three new casebooks, organized a new series of conferences hosted by law schools in California, Washington, and Washington, D.C., contributed to the theme for other ongoing conferences such as ClassCrits (Toward A Critical Legal Analysis of Economic Inequality), and assembled in well-attended panels at the annual meeting of the Association of American Law Schools.
In The Influence of Exile, Sara K. Rankin, associate professor of law and director of the Homeless Rights Advocacy Project of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, contributes to that discourse by theorizing “the influence of exile”—the well-documented drive to exclude disfavored groups of people by restricting their rights to access and occupy public space. (Pp. 1-2.) The influence of exile has taken myriad forms throughout United States history (e.g., Slave Codes, Black Codes, anti-miscegenation laws, and Jim Crow regimes; Asian exclusion laws, Mexican “repatriation” campaigns, and Anti-Okie laws; redlining regulations, policies, and practices; and “Sundown Town” policies and practices), but Rankin argues persuasively that the influence of exile perseverates today in a distinctive “social-spatial segregation [that] further entrenches stereotyping, misunderstanding, and the stigmatization of marginalized groups.” (P. 11.) Her article abounds with insights into these matters. Here I discuss three of them—the visible poor; sociolegal control of public space; and disgust, affect, and ideology.
Rankin critiques the official definition of homelessness and urges a reconceptualization by way of Joel Blau’s notion of the “visible poor.” (Pp. 2 n.8, 3 n.11.) The visible poor includes not only people whom the United States Department of Housing and Urban Development officially counts as homeless but also a substantially larger part of the forty-three-plus million people whose poverty combines “with housing instability, mental illness, or other psychological or socio-economic challenges that deprive them of reasonable alternatives to spending all or the majority of their time in public.” (P. 2.) Like the move urged in 2014 by the ClassCrits group, to contextualize poverty and inequality in relation to precarity and work, Rankin’s rhetorical shift from the homeless to the visible poor promises a better approach to analyzing and intervening against the contemporary “criminalization” laws and policies that target such people. (Pp. 43-44, 48-49, 52.) For example, implicating a larger part of the forty-three-plus million poor people in the United States—over thirteen percent of the populace—helps to move the proliferation of laws that criminalize the visible poor from the margins and may help to organize more effective counters to the influence of exile.
Rankin characterizes the past twenty years as a period in which “the combination of economic conditions, broken window ideologies, and the human drive to exile created a perfect storm for the increasing enactment of laws that purge signs of visible poverty from public space.” (P. 42.) Drawing on interdisciplinary urban studies, she argues that the privatization, commercialization, festivalization, and sanitization of public space all contribute to the problem. (Pp. 39-41.) In particular, business improvement districts, which cities have increasingly imposed on their traditional downtown areas, exemplify these sociolegal processes and political projects. (Pp. 41-42.) For Rankin this situation amounts to one that sociologist Talmadge Wright has conceptualized in terms of “battles for ‘tactical control’ of public space.” (P. 3). Rankin argues persuasively that, “in this context, the mere existence of homeless [and visibly poor] people in public space is an act of resistance.” (P. 56.) In her view, sociolegal controversies over the visibly poor express the ideological and material class relations that construct, naturalize, and ultimately control “public space.” (Pp. 9, 57-58.) In particular, “visible poverty as a form of protest challenges the American conscience to grapple with its own complicity in creating the circumstances within which homelessness and poverty can thrive.” (Pp. 57.)
In the longest part of her article, Rankin synthesizes studies from psychology, social psychology, social neuroscience, and sociology, which explain the group and individual dynamics that animate people to differentially identify with and include others, or instead to misrecognize, exclude, marginalize, and ultimately exile strangers. (Pp. 5-24.) In particular, social neuroscience findings confirm, “that today, society tends to regard homeless and visibly poor people with disgust and rejection at higher rates than most any other perceived status.” (Pp. 12 n.46.) Though some people may find the claim controversial, Rankin explains that, “Studies show visible poverty elicits higher rates of disgust than nearly any other commonly marginalized trait, including racial or ethnic indicia.” (P. 15 n.60.) She acknowledges that people whose ethnicities are racialized into a minority group status tend to be poorer in income, own less wealth, and be otherwise worse off than people whose ethnicities are racialized into the majority white group status. (Pp. 5-7, 12-15.) However, she hypothesizes that the stigmatization of poverty may have become a sanitized way to express otherwise disfavored forms of prejudice. (P. 16 n.63.) Instead of “overt expressions of bias . . . with respect to race and gender, and perhaps increasingly, with respect to sexual orientation and identity . . . the American conscience may be sanitizing many forms of discrimination to appear as something less objectionable or actionable: judgments about social worthiness.” (Pp. 18-20.)
Thus, the influence of exile troubles Rankin in at least two ways: first, it feeds on the disgust that individuals, who are ostensibly not poor (or at least perceive themselves not to be poor), feel when confronted with visibly poor people: they perceive these “strangers” as not only unsightly and dirty blemishes in public space but also as dangers who symbolize human “broken windows.” (Pp. 22-23, 25-26, 36-38, 59.) Second, United States society and culture have evolved an ideology to legitimate and reinforce the disgust that (some, many, most?) individuals feel when confronted with visibly poor people. Instead of allowing this feeling to be identified as invidious discrimination, this ideology cloaks individuals’ feelings of disgust beneath the mantle of a sober judgment about blameworthiness and just deserts. (Pp. 20-21.)
The influence of exile, Rankin argues, thus degrades not only the visibly poor themselves, but also the legislators, judges, and citizens who accede to popular animus against them. Indeed, the influence of exile degrades all of us who allow ourselves to become complicit in the sanitization (privatization, commercialization, festivalization) of public space, and the criminalization of the visibly poor—in a word, exile.
Shakepeare’s Prince Escalus, the ruler of fair Verona, declared at the end of Romeo and Juliet:
See what a scourge is laid upon your hate,
That heaven finds means to kill your joys with love.
And I for winking at your discords too
Have lost a brace of kinsmen: all are punish’d.
According to Rankin, under the influence of exile, here too “all are punish’d.” Thus, she argues for the law—legislators, judges, and the polis—to recognize its invidious influence, to confront its pernicious effects, and ultimately to protect “the rights of all people to exist in public space or, more fundamentally, to exist at all.” (P. 59.)
Every day, across the criminal justice system, state and private actors wield discretion in making decisions: Is a girl standing before a police officer, prosecutor, child welfare official, or social worker a victim in need of protection or a perpetrator, in need of punishment? Does she need harsh correction or gentle, resource-rich protection? Is she a prostitute or is she a victim of trafficking? In (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, Priscilla Ocen presents compelling data suggesting that these discretionary decisions open a door to the exercise of implicit bias and lead to devastating outcomes, disproportionately removing Black girls from the realm of protection embodied by anti-trafficking laws and placing them squarely in the hands of the punitive mechanisms of the juvenile justice system. These facts are tremendously important but, sadly, not surprising. They only add to the wealth of information definitively establishing the disproportionate negative outcomes for Black women, men, boys, and girls in the social welfare, child welfare, criminal, and juvenile justice systems.
While the statistics are jarring, the important questions to ask are causal: Given that Black girls are disproportionately vulnerable to exploitation and disproportionately victimized, why, as a society, do we tolerate them being disproportionately punished? Why are they not, as both the data and intersectionality theory might suggest they should be, at the very center of our efforts to protect girls?
Ocen’s major contribution is her ability to help her readers ask, and begin to answer, these questions. She deftly draws the lens back, helping us understand how history, social construction of identity, implicit bias, failing social institutions, and legal mechanisms allowing for discretionary determinations work together to produce these outcomes. Here we see clearly structural racism and gender bias at work. We see embodied, too, the very real human impact of failing to think and work intersectionally as we purport to solve social problems. To make these crucial arguments, Ocen beautifully marries the particular with the more general, interweaving narrative, data, theory, sociology, history, and psychology in her text.
Ocen argues that while we have a strong cultural construct equating childhood with innocence and the need for protection, Black girls occupy a space of “liminal childhood,” placed at the excluded margins of idealized forms of white girlhood, both included in the concept of girlhood for the purposes of rights deprivation but excluded from notions of childhood innocence. Black girls are “at once viewed as dependent, limited rights-bearing subjects while at the same time they are imbued with adult characteristics such as sexual maturity, individual agency, and criminal responsibility.” (P. 1594.) If the image of the trafficking victim is the innocent girl next door, the Black girls are Jezebel, excluded from protection, blamed for their actions and subject to punishment as prostitutes. Taking us through history, from slavery and the black codes forward, Ocen traces the roots of these powerful cultural stories, arguing compellingly that the reasons that we, as a society, have tolerated Black girls’ disproportionate victimization and punishment are found in this history. But the answers to those why questions are rooted not only in powerful, historical imagery but in important cultural institutions: under-resourced communities; failing schools; high crime rates; and “limited housing, education, and health care” (Id.) all explain why Black girls are situated in positions that make them more likely to be targets for sexual exploitation than their white counterparts.
Ocen’s solutions flow directly from her careful analysis: remove discretion of police, prosecutors, and other state actors by enacting mandatory decriminalization; focus on institutional structures that render Black girls more vulnerable; and establish “race-conscious and gender responsive programs in schools and other social service agencies … where Black girls are most vulnerable to being trafficked.” (P. 1595.) Ocen proves, once again, that intersectionality is not just a theory. It is lived reality, and applying its lens exposes deep injustices and leads toward solutions that address some of our most pressing societal problems.
As a wet-behind-the-ears lawyer in the U.S. Justice Department’s Environmental Enforcement Section, I tried two cases to judgment in my first three years of practice. During fifteen years at the DOJ thereafter, almost every case I touched – including some during a brief stint as an appellate lawyer – settled. So this succinctly-titled article immediately caught my eye.
In Environmental Settlements and Administrative Law, Courtney McVean and Justin Pidot focus not on enforcement litigation but on how the federal government settles cases in which agencies are sued for allegedly violating environmental statutes. McVean (a 2014 graduate of the University of Denver Sturm College of Law) and Pidot (a former DOJ attorney who was then an Assistant Professor at Denver) consider the persistent criticism that the Executive Branch’s settlement practices make policy in ways that violate administrative law norms. Their careful analysis concludes that most environmental settlements are consistent with the procedural constraints of administrative law and that existing judicial review mechanisms are adequate to correct the occasional settlements that overreach.
To make sense of a large number of settlements of claims brought under diverse federal statutes, McVean and Pidot divide settlements into three categories based on the commitments agencies make to resolve cases: resource allocations settlements, procedural settlements, and substantive settlements. As the authors acknowledge, this typology is not entirely new; it tweaks a classification scheme proposed by Jeffrey Gaba more than thirty years ago. The tweak, though small, is important: McVean and Pidot rename as “resource allocation settlements” the class that Gaba called “scheduling agreements.” “Resource allocation” is a more comprehensive label; as McVean and Pidot show, agreeing to a specific timetable is not the only way that settling agencies commit to devote resources to the particular administrative action for which a plaintiff sued. More important, “resource allocation” focuses on the effect that a settlement of this type has on the agency that agrees to it, which is where the emphasis should be in assessing whether such settlements run afoul of legal constraints on agency behavior.
Using a handful of recently or currently controversial settlements, McVean and Pidot systematically evaluate whether each of several common criticisms validly applies to each category of settlement. No, resource allocation settlements do not offend judicially-enforced administrative law norms, because agency choices about resource allocation (absent Congressional earmarking) are quintessentially discretionary and typically insulated from judicial review. Therefore, an agency’s binding agreement to make a final decision on some issue by a specified date is no different from a choice the agency could have made on its own, without any public involvement or judicial second-guessing, even in the absence of a suit seeking to compel a decision. No, process settlements do not violate public participation requirements because the Administrative Procedure Act exempts procedural rules from notice-and-comment, and courts give agencies wide latitude in making procedural choices so long as the statutory minima are satisfied. Finally, no, even substantive settlements do not improperly skirt public participation and other administrative law obligations, provided that the settlement itself is subject to notice-and-comment procedures or the action that the agency agrees to take is itself subject to judicial review that can include review of the propriety of the agency’s commitment to the action in the settlement.
McVean and Pidot acknowledge that substantive settlements, in which agencies commit not only to act but to act in a particular way, pose a risk of circumventing administrative law. They express special concern about deregulatory decisions embodied in settlements, although their example of an improper substantive settlement involves an agency’s agreement to limit environmentally harmful activities by persons who were not party to the litigation being settled. They use this example to support their contention that courts can police substantive settlements using existing law, either on collateral attack or by direct review of the settlements themselves.
Direct review of substantive settlements, McVean and Pidot assert, is not functionally different from arbitrary-and-capricious review of regulatory decisions made outside the settlement context. Perhaps my reaction to this assertion is colored by my experience entering environmental enforcement consent decrees with their “double layer of swaddling,” but to my mind this claim, which the authors support, but thinly, is one of the article’s few points that is open to question. It would be good to see future work rigorously comparing judicial review of substantive regulatory settlements to judicial review outside the settlement context, notwithstanding the difficulty of making that comparison in light of courts’ very malleable application of the arbitrary-and-capricious standard.
The legal analysis in Environmental Settlements and Administrative Law also suggests other opportunities for future scholarship aimed more directly at agency incentives and behavior. In today’s political milieu, the criticism of environmental settlements comes from the right, alleging that agencies implicitly invite lawsuits from their environmentalist friends and cut sweetheart deals to achieve their environmentalist ends. But the lawsuits allege that agencies have not done enough to protect the environment. In deadline suits, the negotiated timetable inevitably requires agency action well after the deadline imposed by statute. Why would eager-beaver regulators prefer a strategy of missed deadlines, lawsuits, and settlements to a strategy of meeting regulatory deadlines in the first place? Because McVean and Pidot show that “to evade the requirements of administrative law” is not the answer, the underlying premise of the agencies’ critics seems doubtful. Study of agencies’ actual dynamic response to being sued could be very enlightening.
Overall, McVean and Pidot persuasively demolish the argument that environmental settlements subvert administrative law’s imperatives. Their analysis, as they conclude, exposes criticism of environmental settlements “for what it is: a war of words relying on emotionally charged rhetoric to score political points.” (P. 239.) To put that conclusion slightly differently, Environmental Settlements and Administrative Law shows that the current complaints about the process of settling environmental lawsuits are stalking horses for disagreements with the substance of the current administration’s environmental policies.
Quite fairly, McVean and Pidot acknowledge that the source of criticism of environmental settlements has varied with the political winds. The same arguments now made by Republican legislators and business-oriented interest groups were made, during the George W. Bush Administration, by Democratic legislators and environmentally oriented interest groups. Environmental Settlements and Administrative Law thus also demonstrates that environmental law, which since the 1970’s has been thoroughly entwined with administrative law, is again illustrating an administrative law truism: when thinking about imposing procedural burdens on agencies, be careful what you wish for, because the process you love today may be the process you hate after the next presidential election. McVean and Pidot have contributed a powerful defense of the need to maintain environmental agencies’ flexibility to settle cases brought against them.
In the concentration camps of the Holocaust, a pink triangle marked gay men’s uniforms to indicate why they had been singled out for imprisonment and death. Beginning in the 1970s, LGBT activists reclaimed the pink triangle, transforming it into a symbol of pride and a demand for respect. Like the Nazi use of the pink triangle, the US Supreme Court’s 1903 decision in Lone Wolf v. Hitchcock represents some of the worst oppression of tribal nations in the United States. Rejecting a challenge to involuntary allotment of tribal lands, Lone Wolf declared that the United States had “plenary power” over Indian tribes, and this power was a “political one, not subject to be controlled by the judicial department of the government.” The case was immediately decried as the Dred Scott for Indians, but unlike Dred Scott, much of Lone Wolf remains good law.
In her provocative new paper, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, Michalyn Steele argues for a partial reclaiming of the plenary power and political question doctrines announced in Lone Wolf and other cases. As Steele notes, the doctrines have been “roundly, and rightly” criticized as leaving tribes “vulnerable to unchecked political whim.” In the limited form Steele proposes, however, the doctrines may be a useful check to what she calls the “heads I win, tails you lose” bind tribes face in the courts today.
Steele begins with the observation that the plenary power doctrine appears to be here to stay. Post-Lone Wolf cases establish that Indian affairs legislation is subject to constitutional review, but the constitutional tests are often less stringent in the tribal context. In practice, as Steele writes, “Congress has had a free hand to legislate and regulate with regard to Indian affairs.” Interpretive rules provided one check on this broad power, as cases both before and after Lone Wolf established that courts will interpret federal legislation as removing tribal property or sovereignty rights only if the intent to do so was clear.
Since 1978, however, the Supreme Court has violated the clear congressional intent principle in cases involving tribal jurisdiction. In a series of decisions, the Court has held that tribes lack all criminal jurisdiction over non-Indians, and retain civil and regulatory jurisdiction over non-Indians only in narrow circumstances. None of these decisions are based on express or even implicit statutory prohibitions, but rather on vague, often inaccurate judicial musings on history and federal policy. All of the decisions, moreover, run counter to congressional policy, which has, since the mid-1970s, focused on encouraging and protecting tribal self-government.
This free-ranging judicial intrusion on tribal sovereign authority, Steele argues, should be barred by the political question doctrine. Steele focuses on three of the factors Baker v. Carr announced would determine whether an issue is nonjusticiable: (i) judicial manageability of the standards, (ii) textual commitment to a coordinate branch, and (iii) policy determinations of a kind clearly of nonjudicial discretion. Pointing to the vague tests the Court has announced for when tribes will lack inherent authority (the internal/external relations test, the necessary to protect self-government test, and the inconsistent with dependent status test), and to the divergent and inconsistent results under these tests, Steele argues that there is no judicially manageable standard for divesting tribes of inherent authority. On the textual commitment to a coordinate branch factor, she points to the constitutional commitment of Indian affairs to Congress in the Commerce Clause, and its similarity to the foreign affairs power, which is the most frequent subject of the political question doctrine. Similarly, as to the clearly nonjudicial discretion factor, she argues that the extent of tribal sovereign authority in dealing with non-Indians is at the heart of congressional and executive policymaking, and is an area in which courts should not intrude absent congressional guidance.
Steele’s political question proposal has some support in recent Supreme Court decisions. Nebraska v. Parker 136 S. Ct. 1072 (2016), Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014), and United States v. Lara, 541 U.S. 193 (2004) (most of the very few cases tribal interests have won in recent years) all endorsed the supremacy of Congress and the limited role for the judiciary in limiting tribal authority. Steele’s proposal also accords with recent cases requiring clear evidence that Congress intended to intrude on either foreign or state sovereignty. See Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) (foreign authority); Bond v. United States, 134 S. Ct. 2077 (2014) (state authority).
Steele notes possible objections to her proposal. In particular, we should condemn any doctrine that would remove from tribal nations, or any group, the protections of judicial review. But invoking political question in this limited context does not unjustly interfere with judicial review. It does not say that the Court may not act to determine whether congressional action violates the Constitution, or whether executive action violates statutory law. It instead puts a stop to a new threat to tribal sovereignty: judicial intrusion untethered from guidance from the branches constitutionally entrusted with making federal Indian policy. One branch of government—Congress—already has plenary power. The judiciary cannot claim its own authority to remove tribal sovereignty as well.
Cite as: Bethany Berger, Reclaiming Lone Wolf?
(August 9, 2016) (reviewing Review of Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Tribes
, 63 UCLA L. Rev.
666 (2016)), https://lex.jotwell.com/reclaiming-lone-wolf/
Rebecca Dresser’s A Fate Worse than Death? article raises profound questions. Scientists have known for some time that certain biomarkers (specifically, elevated tau and beta-amyloid levels) correlate with elevated risks for Alzheimer’s disease. Soon, patients may learn about their own increased probabilities for developing this deadly and dehumanizing disease. This knowledge might cause these patients to adopt advance directives that reject spoon-feeding upon the arrival of advanced dementia. Some preemptive suicides may result. Dresser considers whether we should endorse or recoil from these responses.
Dresser’s analysis anticipates a time when biomarker information relative to Alzheimer’s disease risks is routinely made available to asymptomatic patients. Whether to disclose Alzheimer’s disease biomarker results is still controversial. The tests are imperfect. Dresser examines a study of 311 participants that revealed an eleven to twenty-six percent chance of developing Alzheimer’s disease within five years based on elevated tau and beta-amyloid levels. Many individuals with biomarkers for Alzheimer’s never develop Alzheimer’s (perhaps due to mortality from other causes, perhaps due to other protective factors). Scientists still lack a clear understanding of the relationship between neuropathological patterns and the clinical occurrence of Alzheimer’s disease. Because the tests for pre-symptomatic Alzheimer’s remain unproven, some experts assert that the tests should be deployed only in a research context. With patient demand, however, more and more people are likely to learn their biomarker results in the years to come. Their likely responses lead us to critical legal questions.
Individuals may respond to news of any terminal illness by making more extreme advance directive selections. Some may even consider self-destruction. But a diagnosis of Alzheimer’s disease gives rise to unique considerations. A person with cancer can defer serious thoughts of suicide until the disease overtakes her. An individual with Alzheimer’s disease (or other similar neurological decay) might conclude that she cannot afford a wait and see approach. “Suicide takes relatively sophisticated planning, as well as a strong commitment,” Dresser explains. (P. 658.) As Alzheimer’s progresses, cognition is compromised. The capacity for self-destruction may itself be destroyed, or the individual “may lose interest in doing so.” (Id.) Therefore, persons with an Alzheimer’s diagnosis or a biomarkers prediction are more likely to consider preemptive suicide.
Policymakers should discourage suicide based on Alzheimer’s disease biomarker predictors, Dresser asserts. As a legal matter, it’s an uncontroversial assertion: The great majority of states still criminalize assisted suicide. Those that permit it carefully constrain its availability to narrow sets of circumstances and impose significant government oversight.
Dresser’s more stilling query is whether we should permit competent individuals with positive Alzheimer’s disease biomarkers greater authority over their future care than the law currently recognizes. Advance directives derive from the basic right to refuse unwanted invasive medical treatment. Advance directives instruct care providers, in advance of a later incapacity, to withdraw life-sustaining treatment in the event of a vegetative or terminal condition. An advance directive becomes operative at a point in time when the patient is unable to make or communicate a healthcare decision. (Prior to that time, the patient retains autonomy over her own healthcare decisions by simply communicating her preferences, idiosyncratic or not, to her doctors.)
The varieties of artificial means of life support that are typically addressed in an advance directive (and authorized by the Uniform Health-Care Decisions Act) include antibiotics, chemotherapy, and mechanical respiration. An advance directive can also document an individual’s refusal of nutrition delivered intravenously (“tube feeding”). Tube feeding is a kind of medical treatment. Typically, it is delivered through the abdomen. State laws often clarify that tube feeding may not be withdrawn (even if the pre-incapacitated patient directed) when withdrawal would cause discomfort. Palliative care is one exception to the breadth of advance directives recognized by state law.
Aside from comfort concern limitations, state laws honor the advance refusal of tube feeding. Dresser considers whether an advance refusal of assisted feeding should also be recognized. In some instances, withholding food and water is medically appropriate because the patient has difficulty swallowing, chokes, or experiences discomfort when eating. No court or state legislature has yet considered advance refusal of sustenance by oral feeding. With the projected increasing ability of individuals to assess their own likelihood of experiencing the cognitive decay associated with Alzheimer’s disease via biomarker tests, more and more patients may include assisted spoon-feeding among the treatments they refuse in the text of an advance directive.
Because spoon-feeding is not as invasive as other medical procedures, it is unlikely that a court would find it to be a constitutional liberty interest. Cruzan v. Missouri (U.S. 1990) recognized an incapacitated person’s liberty interest in a pre-incapacity refusal of medical treatment. Government “invasions into the body” are repugnant to substantive due process, emphasized Justice O’Connor, concurring. Spoon-feeding cannot be characterized as a bodily invasion, so there would seem to be no constitutional imperative to give effect to an advance refusal of oral feeding assistance. Recognition would have to come in the form of expansions to state advance directive statutes.
Is the difference between intravenous feeding and assisted feeding only a matter of degree? Perhaps the difference represents a fundamental matter of personal autonomy – where moral considerations shift from the pre-incapacity articulated preferences of an individual to what the majority sees as being in that individual’s best interests. Perhaps not. Perhaps we should consider measures that give effect to individuals’ pre-dementia directions regarding spoon-feeding. Dresser, a Professor of Law as well as a Professor of Ethics in Medicine at Washington University in St. Louis, believes that “[t]he availability of [Alzheimer’s disease] biomarker tests could increase public support for such measures.” (Pp. 666-67.) Professor Dresser’s short article raises important questions that we will likely face with increasing frequency in the near future. “How to die” may become the next fundamental debate in elder law.
Today’s electricity sector has little in common with the industry’s humble origins in the late 1800s, when small power plants located every ten blocks or so served nearby customers through a local grid. Nor does it share many commonalities with the heavily regulated, largely monopolized electricity sector of the 1930s, whose interstate grid prompted passage of the 1935 Federal Power Act. And yet, this more than eighty-year-old statute continues to define the requirements and scope of federal and, indirectly, state regulatory authority over today’s electricity sector. As deregulation and competitive markets, the rise of renewable energy, smart metering, and demand response transform the way electricity is generated, traded, transmitted, and used, regulators and courts are struggling to apply the Federal Power Act to a changing industry.
Earlier this year, the Supreme Court offered its views when, in Federal Energy Regulatory Commission v. Electric Power Supply Association, the Court recognized federal authority to regulate wholesale market operators’ compensation of demand response—temporary reductions in electricity consumption by end-users at times of peak demand. In his thoughtful article FERC’s Expansive Authority to Transform the Electric Grid, Professor Joel B. Eisen places FERC v. EPSA in historical context, proposes a set of principles to guide FERC’s regulation of rules and practices that affect rates in wholesale power markets, and applies these principles to a hypothetical carbon price added to fossil-fueled electricity.
In FERC v. EPSA, a 6-2 majority of the Supreme Court reversed the D.C. Circuit’s vacatur of FERC’s Order No. 745 regarding demand response compensation in wholesale power markets, holding that the order was within FERC’s authority under the Federal Power Act to ensure that rules and practices directly affecting wholesale rates are just and reasonable. EPSA and other critics had previously argued that the Federal Power Act could not be stretched to apply to wholesale market compensation for demand response—a concept clearly not contemplated during the Act’s drafting over eighty years ago.
Professor Eisen’s article offers an in-depth historical analysis that contextualizes and, ultimately, supports the Supreme Court’s expansive reading of FERC’s authority under the Federal Power Act. Starting with railroad regulation in the early 1900s—the origin of the Federal Power Act’s “practices affecting rates” language—continuing with regulation of the electric utility industry from the Act’s 1935 passage to the beginning of deregulation in the 1980s, and culminating with regulation of today’s increasingly market-based electricity sector, Eisen examines the regulatory regime’s evolution across two industries and one century. In the process, he identifies “a distinctive arc, featuring flexibility about conduct being regulated” that FERC v. EPSA continues.
But Professor Eisen’s article offers more than historical context and validation for the Supreme Court’s interpretation of the Federal Power Act. Policymakers, regulators, courts, and practitioners will appreciate the four-factor framework that Eisen proposes to guide future application of the Act’s “practices affecting rates” standard for FERC authority. First, to be jurisdictional an activity must involve “FERC regulation of market rules or other aspects of direct participation by jurisdictional entities.” Second, FERC may offer incentives to adjust inputs to markets under its supervision in order to maintain system reliability—even if these input adjustments impact the states. Third, the notion of practices under the Federal Power Act has evolved from firm-specific to market-wide practices, allowing (and, possibly, requiring) FERC to regulate the structure and operation of wholesale electricity markets. Fourth and finally, the activity in question must have “direct and significant impacts on wholesale rates,” that is, “without the actions of an intervening decision maker.” To illustrate the import of his proposed framework, Professor Eisen applies the above factors to a hypothetical FERC-mandated carbon adder for fossil-fueled electricity traded on wholesale power markets, which he suggests could be reconciled with FERC v. EPSA, assuming a proper finding of discrimination.
With FERC’s Expansive Authority to Transform the Electric Grid, Professor Eisen adds to the growing literature on (clean) energy federalism an unprecedented historical analysis of FERC’s authority under the 1935 Federal Power Act and a practical guide for its application to today’s electricity industry. Demand response is but one of many drivers of the grid’s ongoing transformation, with others, such as electricity storage, already waiting in the wings. FERC v. EPSA and Professor Eisen’s fine article suggest that the Federal Power Act is still very much alive and up to the task of guiding the transition to a bright energy future.
International human rights are often described as universal rights. The universality of this legal regime leads many people to view it as an appropriate resource for addressing the plight of undocumented migrants. Yet the legal protections provided within the international human rights regime are often unavailable to undocumented migrants, or the rights that are most important to them are not protected. International and immigration law scholars rarely acknowledge these limitations, which makes Professor Jaya Ramji-Nogales’ article such an important contribution. “The Right to Have Rights”: Undocumented Migrants and State Protection provides an excellent analysis of the limits of international human rights law in protecting undocumented migrants.
Two of the central challenges that undocumented migrants face are vulnerability within their states of residence due to their limited “recourse against exploitation due to fear of deportation” and “the rupture of family and community ties through deportation.” (P. 1050.) The rights to territorial security (by which Ramji-Nogales means the right to remain in one’s state of residence), family unity, and the absence of discrimination due to immigration status are important rights for addressing undocumented migrants’ central challenges.
To examine the ability of international human rights law to address these challenges, Ramji-Nogales uses Hannah Arendt’s critique of human rights law in The Origins of Totalitarianism as a template. Accordingly, Ramji-Nogales explores (1) the fact that sovereign states decide what rights will be protected and how; (2) the idea that certain groups’ rights are exceptional and protected outside of the domestic legal order; and (3) that individuals’ dependence on sovereign states to protect their individual rights limits the ability of international human rights law to protect undocumented migrants. Arendt found these factors hindered protecting the rights of minorities and stateless individuals, and Ramji-Nogales finds the same for undocumented migrants.
First, while international human rights are conceptualized as universal rights, they actually exclude the rights that are the most important to undocumented migrants. International human rights treaties are state-created instruments, and as a result, “sovereignty interests are deeply embedded in these treaties.” (P. 1060.)
Second, undocumented migrants are exceptional and outside of the international human rights regime. In a number of critical ways, international human rights treaties exclude undocumented migrants from protection. For example, no international human rights treaty supports a narrow right to territorial security. The United Nations Human Rights Committee (“HRC”) is the body responsible for interpreting the International Covenant on Civil and Political Rights (“ICCPR”). The HRC has noted that the ICCPR “does not recognize the rights of aliens to … reside in the territory of a State party.” (P. 1051.) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families “states in no uncertain terms that it does not offer any right to ‘regularization’ for undocumented migrants or their families.” (Id.) The universal claims of the international human rights framework are only plausible if undocumented migrants are understood as being legitimately outside of the system.
Finally, human rights protection depends on state enforcement, and undocumented migrants “have no political voice, and are largely excluded from legal protections in their host states.” (P. 1061.) In order for the international human rights regime to be useful for undocumented migrants, the state protection gap has to be addressed. In a state-created system, state interests significantly shape what substantive rights will be protected and how. Additionally, the enforcement of protected rights depends on having a state act on one’s behalf.
Ramji-Nogales proposes three responses to the state protection gap. First, undocumented migrants could utilize a social movement approach in which they build networks, exchange information, publicize issues that are important to them, and engage in protests. This approach would allow undocumented migrants to “openly challenge the political determinations that define the scope of international human rights law” without relying on the state (P. 1063).
Second, migrant-sending states could demand better treatment of their nationals in receiving states. Undocumented migrants’ home states would discuss the harms their nationals face and work to have receiving states recognize as rights the issues important to undocumented migrants.
Finally, Ramji-Nogales discusses a multilateral approach in which a number of migrant-sending states create a “permanent institution to contextualize the situation of undocumented migrants and advocate for equal treatment.” (P. 1064.) This strategy would differ from current multilateral approaches to coordinate state migration action because it would “aim to radically restructure discussion around the undocumented.” (Id.)
Ramji-Nogales acknowledges the challenges and shortcomings for each of these responses: the coordination challenges involved in organizing a social movement; the comparative power differential between social movements and states; the limited political power of migrant-sending states vis-à-vis receiving states; and the conflicting interests that sending states may have because they simultaneously may be both sending and receiving states.
While none of these responses to the state protection gap offer a guaranteed solution, they begin an important conversation for immigration and international human rights law scholars. Until recently there has been little acknowledgement of the very limited role that international human rights law has been able to play in addressing the needs of undocumented migrants. By identifying specific substantive and institutional challenges, Ramji-Nogales provides a framework that immigration and international human rights scholars and advocates can use to reimagine an international legal regime that is truly universal.