Nov 5, 2024 Wendy Anne BachPoverty Law
For those who care about the scope and effectiveness of America’s federal safety net, the last two years have been disappointing. To be frank, it’s always been disappointing, but this time we were naïve enough to get our hopes up. In the wake of the pandemic we saw, and loudly celebrated, significant expansions and reforms. Even more loudly, we touted the harms prevented, and the surely incontrovertible good that resulted for poor families and poor children and called for many of those reforms to become permanent. First among many, in this category, was the brief restructuring and expansion of Child Tax Credit, which significantly broadened both the size and reach of this benefit, reducing child poverty down to historic lows. That change, along with significant expansions to unemployment benefits, Medicaid, and housing and food assistance, dramatically altered and expanded the reach of the federal safety net. There were flaws, mistakes, and holes no doubt, but overall, the extent and effect of assistance reform was breathtaking. Despite the clear positive effect of these policies and despite significant political investment by center/left policy organizations and the Biden administration, in large part attempts to make these changes permanent failed.
The authors of the article celebrated in this jot, Andrew Hammond, Ariel Jurow Kleiman and Gabriel Scheffler, have written previously in 2020 in How the Covid-19 Pandemic Has and Should Reshape the American Safety Net. In their latest piece, the authors engage in a crucial post-mortem analysis, and identify and propose a potentially highly effective solution to a key post-failure question: “the next time there is an opportunity to strengthen anti-poverty programs, what should Congress do?” Their answer, while perhaps not as lofty as the sweeping vision of those who hoped that the pandemic reforms would translate into a far broader and more universally-oriented system of support, provides a workable, effective, responsive and, potentially more resilient set of mechanisms for reform the next time opportunity calls.
In short, the authors propose that when future and sadly inevitable economic crises create an opportunity for safety net reform, legislators should focus on incorporating automatic triggers into relevant legislation. These trigger provisions, principally for these authors, legislative triggers and indexing, are statutory mechanisms that change policy automatically in response to external events. Their great appeal is that, once enacted, they require no congressional action to enact benefit changes or rule adjustments. So, for example, a trigger might automatically expand benefits or lift a restriction (say work requirements) when unemployment goes above a specific rate. It would also, of course, go back down (in the case of a benefit) or be reinstated (in the event of an eligibility rule shift) once the triggering event subsided, but at least triggers could be designed to actually respond at the beginning and last the length of the crisis. Of all the good things one can say about the pandemic era reforms, as the authors show, many failed on both those tests. Benefits did not always arrive soon enough, and they often went away far before the crisis had concluded.
Indexing, while slightly different, automatically links benefit amounts to an external index or rate, adjusting benefit levels to account for the external shift. As the authors point out, indexes are fairly common in the federal safety net (for example SSDI, SSI, SNAP and the EITC are all indexed to inflation) but many other programs that support low-income Americans (for example the SSI asset limit and the Child and Dependent Care Tax Credit amount and phase out) are not.
The authors freely admit that these proposals are not designed to make the safety net more generous per se. Instead, they argue persuasively that triggers and indices can make the safety net “less politicized, more responsive, and more protective of vulnerable Americans.” They carefully analyze a wide range of other, softer legislative triggers (e.g. sunset provisions and prompting legislation) and demonstrate that their proposals are more likely to be effective. They also carefully analyze the problems endemic to cyclical, crisis-induced legislating and easily persuade their readers that their proposals will effectively mitigate harmful policy drift, make the safety net more responsive to non-economic “disasters,” address state level variation, and improve the relationship between data and policy. These authors wield their deep technical expertise to provide a sound roadmap for those working now to craft legislative proposals that might, at a future political moment, more effectively and permanently respond to crisis and make the safety net stronger over time. In an era of disappointment, that is no small thing.
Oct 2, 2024 Juliet StumpfImmigration
“History,” Max Beerbohm said, “does not repeat itself. The historians repeat one another.”
This quote may (or may not) be an entirely accurate reflection of stare decisis, the notion that stability in the law relies on courts faithfully following past precedent. But the quote makes room for the recognition that stare decisis carries racist precedent from centuries past to perpetuate modern systemic racial subordination in modern immigration law. Ahilan Arulanantham’s Reversing Racist Precedent, forthcoming in the Georgetown Law Journal, proposes a systemic disinfectant for this problem: applying constitutional limitations on race-based state action to racist judicial precedent.
Reams of scholarship have excoriated the nineteenth century cases establishing that Congress and the executive branch are largely freed from constitutional fetters when making immigration law and policy. Every immigration law student learns that the extraordinary power that the political branches wield over immigration law is grounded in extraconstitutional sovereignty, bulwarked by considerations of foreign policy and national security. The Supreme Court articulated this power in the 19th century Chinese Exclusion Cases, Chae Chan Ping and Fong Yue Ting.
Reading these cases, students are often struck by the baldness of its anti-Chinese rhetoric. The Court’s considerations of foreign policy and national security arose from its characterization of Chinese American communities within the United States as “vast hordes of Chinese people” whose “crowding in upon us” was a “form [of] aggression and encroachment.” The Court affirmed Congress’s conclusion that “the presence of foreigners of a different race in this country, who will not assimilate with us,” was “dangerous to [the] peace and security” of the United States. This apparent refusal of a racial group to assimilate constituted a national threat despite the absence of “actual hostilities with the nation of which the foreigners are subjects.” The Court’s characterization of these communities as dangerous cells of insidiousness anchored its reasoning that Congress is entirely unfettered when legislating the why or how of exclusion and deportation.
The Chinese Exclusion cases illustrate the obvious: America’s judiciary did not escape our history of open racism. Dusty tomes harboring openly racist opinions fill the shelves of law school libraries. Stare decisis recycles these precedents, Arulanantham points out, handing them across the decades into neutrally-framed modern precedent that continues to rely on them. Merely dropping the open racism of these precedents, he argues, is not sufficient to disinfect modern case law from older precedent that grounded its reasoning explicitly on race. Since that era, modern constitutional law requires scrutiny of state action grounded on intentional racial discrimination.
Arulanantham proposes turning the same constitutional lens on the third branch. He argues that courts must apply the prohibition against state action motivated by racial animus to its own decisions, stripping those infected with racial prejudice of precedential force. This approach, he claims, will go far to address legal rules infected with racial discrimination.
Arulanantham’s approach is both straightforward and innovative. It proposes using constitutional precedent (stare decisis) to scrutinize the doctrine of stare decisis. Beginning as far back as 1873, the Supreme Court has struck down facially neutral rules motivated by discriminatory purpose. Under the modern constitutional formulation, if invidious race discrimination played a role in even facially neutral government action, that action is unlawful unless the government can show it would have made the same decision without discriminatory intent.
How would this work in practice? Arulunantham explains that “when one party relies on a precedent infected by racism, the other should be able to challenge reliance on that precedent as inconsistent with the Constitution’s prohibition against discrimination. Success would result in the court disregarding the precedent.” (P. 444.)
This is not just an innovation in advocacy strategy, nor merely a way to prevent modern court cases from relying on outdated notions of racial inferiority. Arulanantham also holds out the possibility of disrupting structural racism itself. “In a common law system built on stare decisis,” he explains, “rules enacted with invidious racist intent may naturally persist for decades or more, even where the lawyers and judges following them today harbor no present racist intent.” (P. 444.) Without this brake on stare decisis, racially-based rules will continue to influence American jurisprudence. “In other words,” he points out, “absent an exception for racist precedents, stare decisis doctrine itself functions as a structure that perpetuates racism.” (P. 444.)
Arulanantham concludes that judges should not be exempt from constitutional prohibitions against discrimination, noting that other judicial acts such as jury selection and some court orders already receive such scrutiny. Perhaps most famously, Shelley v. Kraemer relied on the notion that judicial decisions constituted state action when they upheld private agreements in the form of racially restrictive covenants.
The article deftly addresses two major objections to the thesis. The first is purely practical. Given how widespread racially discriminatory views were throughout American history, does that mean that every opinion written by a judge with racist views must be discarded? That’s a lot of dusty tomes.
The answer is no. Racist judges, he recognizes, may still produce good legal rules, such as the ancient writ of habeas corpus. “If a judge who happens to harbor racist views issues a decision, but there is no evidence that racism played a role in that decision,” Arulanantham explains, “the fact that the author held racist views” would not doom the precedent. (Pp. 470-471.)
This is consistent with established approaches to assessing discrimination. Discriminatory views are not actionable unless they come to ground and influence the actor’s conduct, though those views can still constitute evidence of a judge’s invidious intent. And the assessment of discrimination would focus not on the whole opinion but on the relevant legal proposition. Thus, a neutral standard of review may survive while a substantive holding driven by racial animus in the same opinion would fall. Even the much-maligned Korematsu case, he observes, produced the modern strict scrutiny rule for assessing racial classifications.
Just as daunting is the towering body of “second-generation cases”—more modern cases that rely on the older explicitly racist cases. This may be the proposal’s greatest obstacle, but it also holds its greatest promise. Arulanantham first recommends an established test in antidiscrimination law, allowing the later case to stand “so long as it provides race-neutral reasons for the rule endorsed in the prior case,” and “the later case would have adopted the rule even as a matter of first impression.” (P. 476.) A more stringent measure would require the second-generation case to also “acknowledge that the prior case was motivated by racial animus and explicitly choose to readopt the rule from the prior case, notwithstanding its racist origins.” (P. 476.) This second approach would preclude use of the modern case unless it had actually confronted the racism in the original decision and adopted the rule for neutral reasons. The acknowledgement ensures disinfection of the case from the racism of the original case.
Arulanantham does not choose between these approaches. His point is that either approach would begin the critical project of disinfecting racist precedent from the law.
I leave it to you to explore how the author applies these ideas to the Chinese Exclusion Cases in immigration law, connecting those earliest cases to modern Supreme Court precedent that supported the Muslim ban, immigration detention, and immigrant admissions. What I liked (lots) about the article was the clean simplicity of its proposition that judges focus the constitutional lens on their own judicial products. And I loved the way the article turns a mirror on stare decisis itself, applying stare decisis to stare decisis, and pushing us to recognize its structural role in structural racism.
Sep 5, 2024 Anita KrishnakumarLegislation
Margaret H. Lemos & Deborah A. Widiss,
The Solicitor General, Consistency, and Credibility, 100
Notre Dame L. Rev. __ (forthcoming, 2024), available at
SSRN (March, 25, 2024).
In The Solicitor General, Consistency, and Credibility, Professors Maggie Lemos and Deborah Widiss provide an eye-opening deep dive into an increasingly common—and oft-criticized—practice engaged in by the Solicitor General’s Office (OSG): rejecting a legal argument that was offered on behalf of the United States in prior litigation. Such flip-flops by the SG’s office have received considerable attention in recent years, as shifts in presidential administrations have produced a number of high-profile reversals that have, at times, garnered open criticism from the U.S. Supreme Court. The conventional wisdom posits that such OSG reversals are undesirable and pose a threat to the SG’s credibility with the Court. Lemos & Widiss seek to turn that wisdom on its head, arguing that there are often good reasons for the OSG to reverse course and urging courts to make a more nuanced assessment of the circumstances surrounding a reversal before deeming it problematic.
In order to better understand how and why the SG’s office engages in litigation flips, the authors compiled an original dataset of 130 cases dating from 1892 to the close of the Court’s 2022 Term that contained such reversals. Their goal was to provide both a descriptive account of litigation flips and a normative argument for why (and when) the Court’s skepticism of such flips is itself problematic. To that end, the authors offer the following taxonomy, or categories, of OSG flips: (1) flips that are due to changes in presidential administration; (2) flips that result from the fact that the government often wears “two hats”–such that it may have taken one position in litigation involving one agency, and a different position in litigation involving a different agency or that it may have been acting as an employer in one lawsuit but as a regulator in a later lawsuit; (3) flips that arise as a result of changed factual or legal developments, including on-the-ground experience with the relevant legal regime, or intervening changes in statutes, regulations, or judicial interpretations; or (4) flips that result simply from “zealous advocacy”—or efforts to obtain the best possible outcome for the client in a particular case.
After detailing the circumstances under which OSG flips typically occur, the authors turn to addressing what precisely courts seem to find so problematic about such flips. In this section, Lemos & Widiss offer several thoughtful theoretical guesses regarding the potential causes for the Justices’ discomfort with OSG flips. These include, for example, (1) the modern Court’s formalist judicial philosophy, which assumes there is a single “correct” answer for each legal question and accordingly views the rejection of one’s former position as duplicitous; as well as (2) the possibility that the Justices view the OSG as a trusted advisor and regard litigation flips as a sign of carelessness or a propensity for error that renders the advisor less trustworthy.
Lemos & Widiss ultimately reject the above reasoning, arguing that judicial disapproval of flips is usually misplaced—and that, in fact, the ideological flips that tend to draw the most criticism often are the ones that are most justified. Specifically, the authors argue that the OSG is a source of important information to the justices—including information about how government programs work in practice. Citing earlier work by David Strauss, they note that the OSG is in a position to bring to the Court’s attention the effects that legal rules and decisions are having on the ground. In other words, the authors suggest that OSG flips need not signal a lack of care or “error,” but could instead reflect attentiveness to changed factual or legal circumstances—and that in so flipping positions, the OSG may be serving the Court well by making the Justices aware of new developments that justify a shift in legal rules.
Professors Lemos & Widiss conclude by noting that litigation reversals by the OSG can—and often do—reflect a principled effort to understand the law in light of current norms and needs. And they urge the Court to take a more nuanced approach to evaluating such reversals, rather than adopt a knee-jerk view that all OSG flips are problematic and should be treated skeptically.
In the end, The Solicitor General, Consistency, and Credibility provides novel insights into how, when, and why OSG flips occur—as well as persuasive arguments about why such flips are not uniformly (or even predominantly) bad. The article is a must-read for anyone who is interested in the OSG and the role it plays in Supreme Court litigation.
Cite as: Anita Krishnakumar,
When the Solicitor General’s Office Flip-Flops, JOTWELL
(September 5, 2024) (reviewing Margaret H. Lemos & Deborah A. Widiss,
The Solicitor General, Consistency, and Credibility, 100
Notre Dame L. Rev. __ (forthcoming, 2024), available at SSRN (March, 25, 2024)),
https://lex.jotwell.com/when-the-solicitor-generals-office-flip-flops/.
Aug 9, 2024 Jaya Ramji-NogalesImmigration
Immigration law as a field of scholarly inquiry is largely critical of the status quo, with much of the literature describing inequities authorized by law and implemented through policy. An increasing number of these works foreground the work that race performs in perpetrating and perpetuating injustice in the immigration system. Yet there remains a profound silence around the question of blackness in migration. Modern Migrations, Black Interrogations begins to dismantle that silence, presenting the reader with “the unasked question” in the field of migration studies. (P.1.) This critique of antiblackness upends existing assumptions and presents important new directions for scholarly inquiry in immigration law.
As the Introduction to this edited volume explains, blackness should be the starting point for any study of mobility. But we cannot just “add blackness and stir”; the editors insist that we must begin by interrogating the antiblackness at the heart of the U.S. immigration system. (P. 11.) It is only through this more profound inquiry that we can begin to understand all borders and bordering processes, and to combat the antiblack violence enabled and obscured by the vast silence that greets questions of blackness and mobility. (Pp. 1, 14).
The critique of antiblackness offers a rich and productive vantage point from which to trouble questions of mobility and borders. As a “constantly regenerating and mutating feature of the present-day organization of social relations,” (P. 5) antiblackness is a necessary foundation for immigration scholars. One important aspect of this theoretical perspective is the understanding of societal progress as “movement towards a world expunged of blackness” (P. 6.) Blackness is defined in opposition, in “a painful, antithetical relationship,” to European modernity. (P. 65.) When it comes to immigration, blackness is situated outside the immigrant/citizen frame, beyond the path of progress toward citizenship. (P. 64.) This presents a vexing problem for the modern liberal state; while Blacks are viewed as unable to assimilate, at the same time, they cannot be deported. (P. 71.) Blackness can, however, be deployed as a “racial border to police other racialized groups,” with assimilation measured as one’s distance from blackness (Pp. 16-17.)
An antiblackness framing also offers a new lens on the history of U.S. immigration law. In one example, the editors offer connections between the 1798 Alien and Sedition Acts and fears arising from Haitian revolution and potential support for slave revolt in the United States. (Pp. 8-9.) The motivation underlying these Acts, which were the first federal restrictions on immigration, have commonly been depicted as unrelated to race in that they limited the admission of French migrants. This case study presents just one example of how an antiblackness lens can open up new understandings of the history of immigration restrictionism.
In addition to the critical frame of antiblackness, the editors offer a far more complete understanding of Black mobility than is generally presented in the literature. They persuade the reader that blackness must be a starting point for analyzing bordering processes and understanding relevant concepts such as inclusion and exclusion. (P. 17.) Black mobility is a story, the editors remind us, of territorial alienation and forced hypermobility. (Pp. 80-81.) Blackness is “inextricably bound up with the ruptures that produce [the] radically depersonalized placeless condition,” without an understanding of which we cannot begin to comprehend, let alone theorize, migration. (P. 80.) Migration has been a “series of traumatic displacements” that prevent Black people from “experiencing time and occupying space on their own terms.” (P. 81.) This means that the only way out is “a flight from society itself” by “creating a rupture with a given structure of social relations.” (P. 92.) In other words, the only solutions are radical ones; tinkering with the status quo will simply reproduce antiblackness.
The book also reminds us that Black mobility is a story of resistance. The persistent mobility of Black people is nothing short of astonishing given the powerful and pervasive efforts to control Black movement. Unauthorized movement has been a potent form of resistance to enslavement and Jim Crow. (P. 10.) This Black mobility has consistently been received as a threat to the border itself and ultimately, “civilization.” (P. 16.)
By this point, it should not be hard for the reader to discern how the antiblackness critique presented by the book challenges the received wisdom on migration. The editors remind us that freedom of movement presupposes Black captivity, and that Black mobility is the “experience of being radically uprooted.” (P. 66.) This recognition provides a more complete picture of all borders, namely “the understanding that, in order for migration to be a decision, the right not to migrate must also be a valid option.” (P 12.) The book offers profound resistance to what has been labeled the “mobility bias” and the linear progress narrative of migration. (P. 13.) It is also a forceful reminder of the importance of interrogating silences around blackness and mobility, and of the powerful fruits of that inquiry.
Jul 19, 2024 Brian FarkasArbitration
If you ask most practitioners to describe the rules of evidence in arbitration, they’re likely to respond with three words: the Wild West. Recent scholarship by Henry Zhuhao Wang peeks into the black box of arbitral hearings to expand—and complicate—our understanding of this untamed landscape.
When I teach arbitration, I bring a prop to one of the class sessions: an evidence textbook. I ask how many have taken a course on evidence. About three-quarters of the students’ hands shoot up. I ask them to look at the book as I hold it above my head. Notice its thickness. Its height. Its weight. The hard cover and thin pages. I ask them to remember the feeling of schlepping it to class. I ask them to remember the rules. The exceptions to the rules. The exceptions to the exceptions.
Then, I project onto the screen Rule 34 of the American Arbitration Association’s Commercial Arbitration Rules about “Evidence.” The entire Rule is 159 words. In relevant part, it says: “The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary.” It has only a couple cautions: “The arbitrator shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client.” But generally, admissibility is at the discretion of the arbitration: “The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant.”
Students are amazed. The clarity! The simplicity! Their semester-long evidence course is rendered seemingly irrelevant. Evidentiary decisions are entirely discretionary and virtually unappealable. Many arbitrators disregard traditional courtroom rules. Often, arbitrators will admit all evidence that the parties offer, saying that they will simply “take it for whatever it’s worth.”
Can all that really be true? Should it really be true? Wang observes two contradictory realities in the way that evidence is handled in arbitration.
On one hand, arbitration is an alternative to court. It prioritizes efficiency. Arbitrators are sometimes non-lawyers who adjudicate disputes based on industry custom or professional expertise. Some litigants choose arbitration specifically because it eschews legal formalism, including strict adherence to those pesky Federal Rules of Evidence.
On the other hand, litigants and lawyers come to arbitration with vastly differing expectations about the appropriate level of legal formalism. Some expect arbitrators to “view the rules of evidence as presumptively authoritative” as if it were a courtroom proceeding. Others expect that arbitrators will be “open to alternative methods for presenting evidence that would not be permitted in court.” Moreover, parties and lawyers may come from different jurisdictions with their own unique evidentiary traditions distinct from the Federal Rules.
To make matters even more complicated, many (though not all) arbitrations are run through arbitral providers. Examples include the American Arbitration Association, JAMS, or the International Chamber of Commerce. These providers maintain their own rules governing the conduct of proceedings. Some organizations, like the International Bar Association, offer comprehensive evidentiary rules. But many offer fairly loose rules when it comes to evidence, giving total discretion to arbitrators. The American Arbitration Association’s rule, quoted above, is one such example.
In short, evidence in arbitration is all over the map. From the practitioner’s standpoint, it can be difficult or impossible to predict an arbitrator’s rulings. Against this backdrop, Wang suggests that arbitration could benefit from far greater evidentiary clarity and consistency. After all, arbitration has become central to our civil justice system. Its increase in popularity has coincided with a dramatic decline in civil jury trials. Countless businesses and individuals depend on arbitration to provide fair and predictable adjudications. Perhaps the almost-mischievous informality of evidentiary rules in arbitration is no longer appropriate given arbitration’s primary place in our legal system. Maybe the time has come for more mature standards.
Wang’s view is that arbitration’s traditional “let-it-all-in approach” risk serious pitfalls. It opens the door to the consideration of all sorts of unreliable evidence. Wang identifies a litany of materials that are regularly admitted into arbitral hearings “for what they’re worth,” including: affidavits of witnesses not subject to cross-examination; testimony from junk scientists offering unreliable expert opinions; hearsay statements; character evidence; and unauthenticated documents and photographs (particularly concerning in the age of deepfakes and artificial intelligence). After all, there’s a reason that these sorts of sketchy materials are traditionally precluded from the courtroom: they can’t be trusted.
Wang has some ideas. A few examples of his proposals:
- Drafting fulsome hearsay rules, including a checklist to give arbitrators a better sense of when evidence (such as documents) should require a testifying witness to authenticate.
- More specific prohibitions on evidence that would implicate attorney-client privilege, work product protections, or illegally obtained materials.
- Adopting clear burdens of proof required to establish certain claims (e.g., preponderance of the evidence, clear and convincing, etc.).
Many arbitration purists may dislike Wang’s approach. For those purists, the “legalizing” of arbitration is precisely what should be avoided. They may argue that such a cure is worse than the disease because it undermines the whole purpose of alternative dispute resolution: escaping courtroom formalism. But even the purists must contend with Wang’s assessment of the field at a crossroads. As arbitration becomes ubiquitous, can it serve as a reliable alternative to litigation if its evidentiary rules are so… unreliable? It’s a question worth asking.
Cite as: Brian Farkas,
Evidence in Arbitration: Should the Wild West be Tamed?, JOTWELL
(July 19, 2024) (reviewing
Henry Zhuhao Wang,
Alternative Evidence Rules for Arbitration, 24
Nev. L.J. 73 (2024).
Henry Zhuhao Wang,
One Size Does Not Fit All: Alternatives to the Federal Rules of Evidence, 76
Vand. L. Rev. 1709 (2023).
),
https://lex.jotwell.com/evidence-in-arbitration-should-the-wild-west-be-tamed/.
Jul 11, 2024 Caprice RobertsRemedies
Monica Haymond,
Intervention and Universal Remedies,
91 U. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Feb. 1, 2024).
National injunction litigation in public law cases is prevalent, controversial, and important. Universal remedies such as national injunctions are increasingly prominent in high-profile cases. The availability and shape of such remedies always matter to the parties, but the effect on nonparties is another key consideration. Much scholarly attention exists on the efficacy of such relief, but gaps in the literature remain. Professor Haymond fills a gap on the unexpected role of intervenors on these bold remedies. Her recent work, Intervention and Universal Remedies, offers provocative, detailed data that demonstrates significant consequences of intervenors on litigation seeking national injunctions. Ultimately, this rigorous examination reveals how the treatment of intervenors has immense impact and warrants deeper attention.
Professor Haymond examines over 500 national injunction cases to reveal that an unexpected, outsider participant has an outsized effect on outcomes. Her study uncovers that intervention in such suits is “commonly sought, often contested, unpredictably obtained, and enormously consequential.” (P. 6.) Professor Haymond poses an important question: What if the federal rules governing such high-stakes litigation no longer protect the values they were designed to serve? The Federal Rule of Civil Procedure covering intervenors is Rule 24, and its purpose is threefold: “to secure a meaningful opportunity for affected nonparties to participate in cases affecting their interests, to enhance judicial efficiency, and to safeguard some measure of party control.” (P. 6.) Yet Professor Haymond concludes that intervention practice in national injunction cases effectively does not advance those values.
This article makes many excellent contributions. For example, it shows the blurred analyses between intervention as-of-right versus permissively, and it examines the contours of an intervenor’s right to participate meaningfully. It starts with effective presentation of intervenor interests and perceiving that the judge heard the interests. More specifically, it includes that the intervenor, unlike amici, can advance evidence, make arguments, participate in settlement talks, and appeal adverse rulings. The article laments that judges have broad discretion in determining whether an intervenor is permissive or of right as well as the nature and scope of participation.
Professor Haymond emphasizes three attributes that are relevant to Rule 24’s function that heighten the import of intervenor participation: “(1) the universal nature of the remedy affects numerous interests not captured by the litigating parties; (2) these cases are often high-profile and involve politically salient national rules and policies; and (3) the remedy often forecloses other types of participation—either in other lawsuits or in the political process.” (P. 29.) Of the 508 cases that Professor Haymond analyzes, thirty-four percent (173) of those cases involved at least one motion by an intervenor. In two-thirds of those cases, the judge granted the motion to at least one party, and judges denied the motion to at least one party in a third of the cases. The article lists all the cases in an Appendix. According to Professor Haymond, this data reveals the surprising impact of intervention on the litigation of national injunction cases.
Intervenors in national injunction cases have six primary motivations, in Professor Hammond’s opinion. First, intervenors commonly seek to offer new evidence to support a substantive claim or justify a proposed scope of remedy. Examples abound including the multi-suit challenge to former President Trump’s travel ban and the multi-state challenge to former President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents. Second, intervenors frequently propel supplemental legal arguments for judicial consideration. Third, though less often, intervenors attempt to add new claims against one of the original parties. Professor Haymond provides a salient example of a transgender student who intervened in Highland Local School District v. United States Department of Education to defend the Department of Education’s interpretation of “sex” in Title IX to include gender identity and to advance a constitutional and Title IX challenge against the district.
As a fourth overarching category, Professor Haymond suggests that intervenors often seek to provide a new perspective or narrative framing to national injunction cases. For this classification, the article offers DACA suits on immigration policy where intervenors wish to embody the perspective of young, affected immigrants. Other examples range from ACA challenges to exemptions for religious schools from LGBTQ anti-discrimination regulations. For the fifth class, the article suggests national injunction cases in which intervenors, such as in the travel ban cases, constitute a new injured plaintiff to satisfy Article III standing requirement of “one-good plaintiff.” (P. 38.)
In the final sixth grouping, Professor Haymond explores intervenors who seek to prevent the original parties from dismantling the case via settlement or declining an appeal from an adverse ruling. Again, Professor Haymond culls through the cases to pinpoint examples of this phenomenon in action. As the article uncovers, this tactic often occurs when the federal government makes a strategic determination to alter its policy such as regarding the definition of “waters of the United States.” (P. 39.) Intervenors also arise when the federal government relinquishes its defense of a challenged policy or rule such as the FDA’s requirements for in-person dissemination of Mifepristone. As Professor Haymond explains such intervenors often ground their participation as essential to the court’s review of troubling government policies or litigation tactics. This phenomenon, as described by some intervenors, centers on the strategy of certain federal agencies to “sue and settle” in, for example, the Public Charge cases and challenges to limits on immigration during the Covid-19 crisis. (P. 40–41.)
The motivations of intervenors paint a clear picture, but as Professor Haymond demonstrates, judicial decisions about intervenors are unpredictable and the outcomes inconsistent. Professor Haymond suggests that the negative conditions may be even worse given that the data represents only a relatively small portion of rulings where judges have offered reasons for granting or denying motions to intervene. These charges merit examination given just how consequential intervention decisions are. The author admits that common intervenor effects on arguments and evidence are mild, but a more troubling consequence arises “when intervenors force cases to proceed past when the original parties would have ended the suit.” (P. 44.) A quintessential example that the article discusses is California v. Texas, in which the intervenors were the sole party to appeal a court determination on the merits of the Affordable Care Act. Other examples involved policy determinations of the EPA and the FDA. The author acknowledges that not all intervenors are the same, but intervenors as the lone appealers pose normative considerations including the goals of Rule 24 and, more broadly, the proper role of federal courts in prominent, politically volatile cases.
Professor Haymond raises troubling concerns regarding the undermining of procedural purposes, decreasing judicial efficiencies, and exacerbating diminished party control. According to the article, not only do the rules not serve their intended goals, but with respect to intervenors, the relevant rule creates additional negative implications. These concerns include broad judicial discretion to determine whether the case proceeds as well as increased judicial involvement in politically infused cases. It undermines judicial impartiality. As noted earlier, an unusual aspect of the latter concern is that intervenors may cause the litigation to survive after the main parties disappear, drop their appeal, or settle. This phenomenon occurs despite intervenors themselves lacking standing. As Professor Haymond warns, such breakdowns may embody the canary in the coal mine about larger, structural deficiencies and systemic problems.
Fortunately, the article includes and assesses recommendations including modifying the presumption of adequate representation either via doctrinal adjustments or rulemaking by the Federal Civil Rules Advisory Committee. Other suggestions focus on remedial intervention such as judicial narrowing of intervention limited to the scope of the remedy, but notes the better course may be the promulgation of a new rule explicitly permitting remedial intervention. Given the high stakes, Professor Haymond recommends that judges broadly grant remedial intervention on the efficacy of national injunctions. Though Professor Haymond recognizes the potential costs, the article provides a model for remedial intervention attainable in fast-moving litigation—the court in State of Louisiana v. Centers for Disease Control denied an intervention motion but swiftly permitted prospective intervenors participation rights including oral argument on the scope of injunctive relief. With such reforms, Professor Haymond convincingly argues that the rules of civil procedure will better serve relevant goals and better equip federal judges with helpful tools for exercising more principled discretion in consequential decisions regarding intervenors and universal remedies.
Jul 1, 2024 Ezra RosserNative Peoples LawPoverty Law
Vanessa Ann Racehorse,
Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, __
Colum. Hum. Rts. L. Rev. __ (forthcoming), available at
SSRN (April 10, 2024).
The life expectancy of Native Americans is almost eleven years less than the average of all races in the United States. (P. 20.) And across countless other metrics—from drug addiction to diabetes—Natives suffer disproportionately high rates of illness and death compared to other Americans. (P. 20.) Despite this, funding for Indian Health Services (IHS) remains below the level of support given to non-Indians and well short of what is needed to provide adequate health care to tribal communities. (P. 19.) Professor Vanessa Ann Racehorse’s article, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, does a fabulous job describing the linked problems of health disparities and insufficient funding for Native communities, while also offering suggestions on how health outcomes might be improved. But the article’s contributions extend beyond laying a foundation for better understanding tribal health care; Professor Racehorse also shows that when Indian nations assert their powers of self-determination in the health care space, outcomes for tribal members can improve.
Tribal Health Self-Determination is a reminder of the relatively high levels of reservation poverty and the ways that poverty, subordination, and health intersect. As Professor Racehorse highlights, Indian health is made worse by past injustices such as forced sterilization that contribute to historical trauma. (Pp. 11-12.) But health disparities are not inevitable. Under international law, tribal members have a right to the highest attainable standard of health. (Pp. 34-39.) Moreover, tribal takeover of IHS facilities can lead to better health outcomes through culturally competent care and local accountability. (Pp. 40-58.) Under-funding remains a challenge, but Professor Racehorse’s article provides a strong argument for supporting tribal assertions of authority over facilities that were previously run by the federal government.
Perhaps the strongest section of the article is Part II, which focuses on Indian Health Care and Health Disparities. Having laid out the legislative history behind Indian health care in Part I, Professor Racehorse spends the middle part of her article highlighting the health disparities facing Indians and analyzing the possibilities of attacking these disparities through litigation. Not surprisingly for those who have been following the ways the U.S. Supreme Court has narrowed the enforceability of the federal government’s trust responsibilities towards tribes, Professor Racehorse’s careful analysis shows the limits of litigation. But by tying her analysis to a particular challenge—health care disparities—Professor Racehorse was able to move beyond the standard theoretical complaints that are bound to be fully explored in the Indian law literature over the next decade.
The U.S. Supreme Court has so successfully chipped away at idea of a general trust responsibility that it is reasonable to ask if such a trust relationship even exists anymore. In place of general trust obligations, the Court is insisting that tribes cannot enforcement the government’s trust responsibilities unless the U.S. government has opened itself up to judicial accountability through particular legislation. See United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011); Arizona v. Navajo Nation, 599 U.S. __ (2023). Doctrinal critiques of this sort of narrowing risk obscuring the point—the Supreme Court is making it increasingly difficult for Indian nations to insist that the U.S. live up to what had been long-standing and well-established policy objectives. What is great about Professor Racehorse’s coverage of such litigation is that by linking the shifting doctrinal ground to the troubling level of disparities in health outcomes and health funding, readers can see how these arcane doctrinal changes negatively impact tribal members struggling with poverty, inadequate services, and health challenges on Indian reservations.
Finally, Professor Racehorse’s article stands out because of the way it helps open the field for other scholars interested in Indian Health Services. Such work crosses a number of scholarly lines—poverty law, health law, and Indian law—but likely will be of greatest significance in Indian country. There is a tendency to treat Native lived experience as a case study for a larger phenomenon or to focus in jurisdictional issues while neglecting those systems that most impact tribal members in their daily lives. Professor Racehorse’s Tribal Health Self-Determination should interest all readers, from those who will find the health disparity statistics shocking to those looking for ways to improve tribal health services and outcomes.
Cite as: Ezra Rosser,
Improving Health Services for Tribal Communities, JOTWELL
(July 1, 2024) (reviewing Vanessa Ann Racehorse,
Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, __
Colum. Hum. Rts. L. Rev. __ (forthcoming), available at SSRN (April 10, 2024)),
https://lex.jotwell.com/improving-health-services-for-tribal-communities/.
Jun 3, 2024 Marco JimenezRemedies
If there is one article that nearly every legal scholar is familiar with, that article would have to be Guido Calabresi & A. Douglas Melamed’s Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. It was in that Article that the famous distinction between property rules (i.e., entitlements that can only be purchased in voluntary transactions) and liability rules (i.e., entitlements that can be infringed by simply paying the value of the entitlement as determined by a court) was first put forward. This idea has had a tremendous impact both within and outside the legal academy, its framework having been incorporated into numerous judicial opinions. When one thinks about this Article, one tends to think about law and economics, and how courts that have internalized this approach frequently employ such thinking to choose the most efficient rule when deciding how to protect entitlements in important areas of private law like contract, tort, and property law. What one ordinarily does not think about, however, is racial inequality, which is the focus of a new and interesting Article recently published by Yotam Kaplan in the Maryland Law Review.
The main point of Kaplan’s Article is as simple as it is powerful: because judges are tasked with the burden of choosing between protecting a party’s entitlement with a property rule or a liability rule, and because bias inevitably creeps in whenever humans make decisions, a judge’s decision must necessarily be biased as well. In the author’s own words: “Under a property rule, a right holder is allowed to determine the value of their entitlement; under a liability rule, the power to determine the value of the entitlement is taken from the right holder and given to an objective state organ. Once we recognize that state organs are not objective, but racially biased, it is clear that the move from a property rule to a liability rule is not a neutral one.” (Pp. 483-84.)
For this reason, a judge’s decision to protect an entitlement with a liability rule not only “amounts to the appropriation of the holder’s ability to determine the value of their right” (a fair point, to be sure, but one that was recognized by Calabresi and Melamed in their original Article) but, more perniciously, will be made by “a biased state organ, who is likely to undervalue the right” when it comes to racial minorities (P. 484). The Article points to specific data supporting the fact that judges and jurors tend to undervalue (1) the future earnings of racial minorities, often reinforcing the racial wage gap that already exist as a byproduct of historical and systemic racial discrimination (P. 517), (2) the home values of racial minorities, where “Black homeowners are about twice as likely as white homeowners to have their homes appraised lower than the actual selling price” (P. 509), and even (3) the pain and suffering experienced by racial minorities, presumably on the ground that Blacks experience less pain than their white counterparts from similar injuries (Pp. 513-14), thereby leading to lower compensation when liability rule protection is chosen by a judge instead of property rule protection.
In short, the author makes a convincing argument that, at the very least, judges should consider accounting for their biases by putting a thumb on the property rule side of the scale when choosing between property and liability rules. But even if a judge believed that they were truly unbiased (a dubious proposition in itself) and were really concerned about choosing the most efficient rule, the author makes a compelling argument that judges should still be forced to pick the rule that best ensures that wrongdoers who would infringe on another’s entitlements internalize the full costs of their behavior. At the very least, this would mean that if liability rule protection were chosen, the wrongdoer should have to pay for the full cost of their harmful activities, rather than costs that are systematically undervalued due to racial bias, as the latter would distort economic incentives and allow wrongdoers to continue to engage in economically-inefficient behavior (i.e., behavior in which their victims were not fully compensated).
Of course, there is much more in this Article than can be captured by this short summary, but I can heartily recommend it to anyone interested in law and economics or critical race theory in general, or to anyone who teaches property rules and liability rules in any of their classes (which, I imagine, is a not insignificant portion of the legal academy). I know I will be discussing this Article in both my Remedies and Jurisprudence classes this Spring and look forward to excellent class discussions around these themes!
May 13, 2024 Kristina NiedringhausLibrarianship and Legal Technology
I usually avoid articles about generational differences because they too often veer into the “kids these days” territory. However, from her opening quote and introduction, I suspect that Prof. Schlinck and I have similar feelings about those types of articles. As she writes, “After all, if complaints about the younger generation’s “tyranniz[ing] their teachers” (referencing a quote from Plato, or someone) dates back to ancient Greece, then it may be time to see our students as occupying a glass half full.” (P. 272.) Prof. Schlinck’s article, OK, Zoomer: Teaching Legal Research to Gen Z, provides a brief explanation of generational theory before exploring aspects of Gen Z’s “peer personality.” She then translates those generational traits into pedagogical strategies for optimizing legal research instruction for today’s typical law student. While the suggested techniques are discussed in the context of research instruction, most of them can be extrapolated to other subjects and will be useful for teaching a variety of law school courses.
Prof. Schlinck’s article outlines ten pedagogical tactics that respond to the generational traits of Gen Z.
Explain the relevance to legal practice: Prof. Schlinck posits that if Gen Z’s reaction to the Great Recession is concern about employment and financial security, students want to know how what they are learning will benefit them in their practice. Explain why they are learning something. Legal research instructors are encouraged to explain the real-world costs of legal research and how becoming more efficient researchers will affect the bottom line.
Record short lectures for pre-class homework: Gen Z students who prefer short-format video learning will appreciate a flipped classroom approach that allows students to learn in chunks (no longer than 20 minutes) individually before class. Prof. Schlinck emphasizes that quality matters. Content, video, and audio should all be high quality. Embedded questions can be used to incentivize focus. This is a technique I use in my legal research course. Using recorded mini-lectures and quizzes before class has the added benefit of allowing time in class for assignments that simulate real-world research problems, they may face in practice but with me there to answer questions and provide guidance.
Redesign group work: Prof. Schlinck highlights that while Millennials tend to enjoy group work and collaboration, Gen Z prefers a more hybrid approach. She explains that while Gen Z students typically do enjoy collaboration, they prefer to first have time to learn the material on their own before working in a group. Gen Z students may also prefer to work by themselves on assignments that will count toward their grade.
Turn the research memo into the research email: Students need practice communicating the results of their research. Many legal research instructors use the construct of the research memo to the partner as a method of practicing this skill. However, Prof. Schlinck points out that this information is more often conveyed as an email rather than a more formal memo. But, if as suggested, Gen Z is uncomfortable communicating by email, this suggestion becomes doubly important.
Provide regular, and timely, feedback on formative assessments: One example provided by Prof. Schlinck of this type of assignment is a live critique. She explains that Gen Z law students experienced near-constant standardized testing throughout their K-12 education. In contrast, a live critique provides in-person interaction desired by Gen Z while also giving them needed practice receiving feedback. Prof. Schlinck recommends making a live critique assignment ungraded to eliminate one source of stress from the experience.
Relate course work to what they care about: Gen Z law students tend to be more engaged with social and political issues and Prof. Schlinck suggests harnessing this trait by partnering with legal organizations for real-world legal research experiences. Although not suggested by Prof. Schlinck, I suspect there might be some benefit, although lacking the real-world component, in designing research hypotheticals that go beyond fences over the property line or dog bites and present scenarios related to issues like climate change or public surveillance.
Embrace the search engine and internet research: Traditionally, law faculty have preached about the dangers of using tools like Google and misinformation on the internet. As Prof. Schlinck states so aptly, “Zoomers are going to use Google for legal research, no matter how many times they are told not to.” (P. 299.) We need to teach them how to use the tools more effectively and to think more critically about how they search and how they assess their results. Given the past few months, I would extend this strategy to say that we need to also embrace generative AI. It is here and firms expect our students to understand how to use it and it is our job to teach them. In many ways, prompt engineering in AI is like constructing a search. This seems like a logical extension of our role in teaching law students how to search effectively and critically evaluate their search results.
Teach the process, not the platform: A key tenet of effective legal research is that legal sources are interconnected, and we use that interconnectedness to be more efficient and effective researchers. Traditionally, this has been more obvious when looking at print resources. Prof. Schlinck argues that law students today exist in a world where they will rarely, if ever, use print resources. Accordingly, we should be teaching them the structure and links between sources regardless of format, rather than showing them the structure in print and expecting it to translate to electronic. She also observes that by doing this we are creating “technologically resilient” graduates who can navigate the ever-evolving research platforms successfully.
Teach Critical Legal Research and name it: Prof. Schlinck argues that law students should be deliberately and transparently taught Critical Legal Research. Critical Legal Research examines how the structure and organization of legal information is influenced by underlying biases and decisions that impact the practice of legal research. For example, there has recently been discussion and advocacy around identifying “slave cases” when they are cited in legal materials. One purpose of this effort is to demonstrate how the structure of legal information contributes to the continued citation of slave cases as good law (See for example the Citing Slavery Project). She argues that teaching Critical Legal Research teaches students how to think critically about information sources in a broader context as well and helps teach critical analysis.
Care, and show it: If Gen Z expects inclusion, diverse viewpoints, acceptance of self-care, and a respectful environment, Prof. Schlinck argues that can be achieved by demonstrating care through responsiveness, empathy, and seeking student feedback on how they are learning. She goes on to say that care, or passion, for the subject, may also be helpful here. “Subjects often perceived as boring–legal research included–can be engaging if the Prof. is excited about the material and the class.” (P. 304.)
Prof. Schlinck’s article is deft at drawing connections between the generational traits typically associated with Gen Z and pedagogical techniques that can produce the best results with Gen Z in the legal research classroom. Many of these techniques are also readily transferrable to other skills and doctrinal subjects in the law school curriculum. The article is also an excellent read for learning more about the traits and social context of the typical law student today. Many faculty adjusted teaching strategies for Millennials and there are some significant differences between Gen Z and Millennials. It is time to update law school pedagogy to respond to these changes.
Apr 30, 2024 Steve GoldEnvironmental Law
When young people accusingly complain that my generation unfairly saddled them with the problem of climate change, I like to remind them that my contemporaries and immediate forebears advocated for, enacted, and implemented–indeed, invented–modern environmental law in this country. However true it is that we failed to protect our heirs from climate change, we are bequeathing them a world that is demonstrably cleaner and healthier than it would have been absent the spate of environmental lawmaking that began in 1970.
In the articles reviewed here, two lions of the founding era, each writing with a younger co-author, remind us that the success of U.S. environmental law remains incomplete. Climate change, these articles point out, is not the only environmental problem of global scale and massive if unpredictable consequence–nor the only problem that environmental law has been unable to solve. Robert Adler and Carina Wells take on the law’s failure to deal with pollution from plastics. Mark Nevitt and Robert Percival tackle the law’s feeble response to PFAS (per- and poly- fluoroalkylated substances). We who once pondered the limits to growth must now confront the limits to law. Or at least the limits to existing U.S. environmental laws.
The substances these articles address are overlapping sets: many plastics contain or are made with or from PFAS, although many plastics have no PFAS and many PFAS are not plastics. Not surprisingly, they share traits that have made them intractable. First, both PFAS and plastics are incredibly useful. The articles concede this utility, though both skip over it lightly–particularly Nevitt and Percival, who mainly acknowledge the function of PFAS in aqueous film-forming foam used to fight fires. Second, both PFAS and plastics are incredibly diverse. That diversity seems always to increase as industry invents new chemical structures and new products. Third, both PFAS and plastics create a frightening array of ecological and public health dangers.
The articles unsparingly describe these dangers. Adler and Wells attempt a life cycle analysis of the externalities embedded in plastics, from extraction of raw materials through production processes through product disposal. The task is far beyond the capacity of a single law review article, but even in the broad generalities they necessarily employ, their catalog is impressive. I stopped counting when my list of distinct environmental impacts described in their article reached twenty. Nevitt and Percival focus more tightly on the public health dangers of exposure to PFAS as an environmental contaminant. But their analysis too is really about a life cycle, as PFAS dispersal into the environment can occur at any point from chemical synthesis to disposal of process wastes to use and disposal of PFAS-containing products. For some uses, like firefighting, environmental dispersal is almost the point.
After describing the environmental dangers of PFAS and plastics, the articles dolefully explain how our environmental statutes have not protected us from these dangers. For PFAS pollution, Nevitt and Percival work through the failures of a half-dozen potentially useful statutes: the Safe Drinking Water Act (SDWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). For pollution from plastics, Adler and Wells explore the failures of a different half-dozen: the CWA and the Clean Air Act with respect to pollution from production processes, RCRA and CERCLA with respect to waste disposal, and TSCA and the Food, Drug and Cosmetic Act (FDCA) with respect to the manufacture and use of plastics-related chemicals and food-contact substances, respectively.
Interestingly, neither pair of authors blames politics for the failure of existing law to provide adequate protection from known dangers. Instead, both articles tell a depressing story of regulatory slowness verging on paralysis, even when the intent to act seems present. The story is familiar to students of environmental law and administrative law, but the details are still arresting.
Nevitt and Percival, for example, describe the creeping pace of PFAS regulation under the Safe Drinking Water Act (SDWA). EPA in 2009 listed certain PFAS for evaluation, in 2012 required collection of monitoring data for two years, in 2016 issued a non-binding health advisory for just PFOA and PFOS (the two most notorious PFAS), in 2019 announced an intention to issue a binding maximum contaminant level (MCL) for those chemicals, and in 2021 made a final determination to do so. In 2023, too late to be included in Nevitt’s and Percival’s article, EPA published a proposed rule that would set that MCL. EPA has yet to issue a final rule.
Adler and Wells, for another example, assess EPA’s technology-based regulation of water pollution discharges by the organic chemicals, plastics, and synthetic fibers industry. They recount that EPA first promulgated these regulations in the mid-1970s, but after a successful court challenge it took EPA until 1987 to issue new rules. Those 1987 rules remain in effect. Adler and Wells note that the industry (not to mention pollution control technology) might have changed a bit since then.
Adler and Wells offer an explanation for such regulatory stagnation. Required to show that its regulations satisfy the statutory standard, forced to comply with a host of additional justificatory requirements imposed by executive order or by other statutes, mindful always of the likelihood of petitions for judicial review, EPA simply is incapable of keeping up with complexity, change and innovation in the industries it regulates. Underlying it all, they assert, is the free market approach that dominates U.S. environmental law. They observe that in order to mitigate the effects of externalities, this approach tolerates regulation of how industry produces its output and handles its waste, but not regulation of what industry produces.
Nevitt and Percival delve less into theory, but their explanation is similar. They too note the information-dense requirements of EPA’s statutory authorities. They point out that the prevailing regulatory model requires that these authorities be applied to each distinct chemical entity, one at a time. Moreover, they note that the structure of the Toxic Substances Control Act (TSCA), even as amended in 2016, leaves it to the chemical industry to develop and disclose information about the toxicity of its products. This puts EPA in the position of responding to harm caused by PFAS and other toxic chemicals instead of achieving the statute’s putative goal of preventing the harm from occurring in the first place.
In light of their devastating critiques of the efficacy of existing environmental law, the articles’ proposals for reform seem wan. Adler and Wells put their weight behind the Break Free from Plastic Pollution Act, legislation introduced in the U.S. Senate in 2023. The bill is admirably catholic in its mix of regulatory approaches and economic incentives, but even Adler and Wells acknowledge that some of these approaches would face the same constraints that have hobbled existing environmental statutes. Nevitt and Percival praise two bills introduced in 2021. The Filthy Fifty Act would have required study and remediation of PFAS contamination at select military facilities. The PFAS Action Act of 2021 would have required EPA to complete some regulatory actions, including listing PFOA and PFOS as hazardous substances under CERCLA and setting an MCL for these compounds.
None of these bills would provide a solution commensurate with the articles’ description of the challenges environmental law faces in protecting people and the planet from plastics, PFAS, and other problems of similar scale. Of course, none of them became law, either. The reality of the political moment may suggest that it is not even worth thinking about deeper reforms. But if environmental law scholars do not think that way, who will?
These articles get at something fundamental in environmental law. The law assumes that the market knows best until a regulatory agency proves otherwise. The market has given us plastics in vital medical equipment and in disposable drinking straws, PFAS in flame retardants and in fast-food wrappers. Meanwhile, regulators are on their heels, always playing catch-up. Nevitt and Percival float the idea of reversing the burden, requiring chemical manufacturers to demonstrate the relative greater need or lower toxicity of their particular PFAS product.
In concluding their articles, both pairs of authors plead for a more precautionary approach to regulating the environmental and health effects of complex and rapidly-changing groups of industrial chemicals and products. The plea is also a challenge: can we design that approach? That challenge, perhaps, is the most important contribution of these fine pieces by Adler and Wells and by Nevitt and Percival.
Cite as: Steve Gold,
The Limits to Law(s), JOTWELL
(April 30, 2024) (reviewing
Robert W. Adler & Carina E. Wells,
Plastics and the Limits of U.S. Environmental Law, 47
Harv. Env’t L. Rev. 1 (2023).
Mark P. Nevitt & Robert V. Percival,
Can Environmental Law Solve the “Forever Chemical” Problem?, 57
Wake Forest L. Rev. 239 (2022).
),
https://lex.jotwell.com/the-limits-to-laws/.
