Stephen A. Smith, Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action
, 27 N.Z.U.L. Rev.
1033 (2017), available at SSRN
It is a familiar quip that a right without a remedy is no right at all. A recent article by Stephen A. Smith shows, however, that there is such a thing as a remedy with no right—something I might call a “rightless remedy.” In Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action, Smith explicates a category of judicial orders (i.e., remedies) that are not tied to any underlying legal right or wrong. In doing so, Smith tells us something important about both rights and remedies.
To appreciate Smith’s insights, it is first important to understand his taxonomy. The phrase “cause of action” can mean many things, but to Smith and other scholars writing in this area, a “cause of action” is a set of facts that justify a judicially-administered remedy. Understood as such, a cause of action is not necessarily co-extensive with substantive law. The substantive law contains instructions for citizens (e.g., “do not hit others,”) but cause-of-action law (sometimes called “remedial law”) contains instructions for courts (e.g. “if a person proves to you that she has been hit, order the hitter to pay her damages”). Causes of action will usually track the substantive law closely, and for that reason we often take it for granted that, where a wrong has been committed, a court will issue a remedy. But there are certainly situations in which remedial law does not authorize judicial intervention, even when a wrong has been committed (such as, for example, when a court declines to issue an injunction because it will impose an undue hardship on the defendant). Far less common (or even ignored until Smith showed otherwise) are situations in which a remedy issues where no wrong has been committed—but that is an issue we will get to in a bit.
Smith’s project is to explain, as a categorical matter, the circumstances in which courts will issue a remedy. Two of these—rights-threats and wrongs—are easily recognizable to legal scholars and practitioners. When your neighbor threatens to cut down your tree (i.e., threatens to infringe one of your rights), a court will put down this threat by ordering your neighbor not to do so. Relatedly, if your neighbor cuts down your tree before you can make it to court (i.e., commits a legal wrong), a court will order the neighbor to pay you damages. Neither of these grounds for relief upsets our common understanding of remedial law. But Smith’s third ground—injustice—introduces a new variation of remedial law.
An injustice, in Smith’s telling, is a judicially administered remedy that is not based on a rights-threat or a wrong. Smith offers several examples, but a useful one for our purposes is restitution in the case of defectively transferred funds. If I mistakenly transfer money to your account, a court will order you to return the money—even though you have done nothing wrong. One might counter that retaining money mistakenly transferred to you is wrongful, but Smith convincingly shows why that is false. There is no underlying duty to return such money because people who receive such money often have no knowledge of it, or even if they do, have no way to determine with any certainty—short of judicial intervention—to whom to return the money. Thus, in the case of mistakenly transferred funds, the traditional role of the court is not to enforce an underlying duty through a remedy, but simply to correct the injustice by ordering the money be returned.
Having shown that a remedy in injustice cases is, to use my term, a “rightless remedy,” Smith turns to the question of why such a phenomenon should exist in private law. Part of the reason is contained in the point above: people frequently cannot be expected to have sufficient knowledge to comply with such a duty. Thus, if society wishes the money to be returned (to continue with the example from above), it can only accomplish this by a judicial order.
Perhaps. Or perhaps not. Instead of an order, we could accomplish the same result with a judicial declaration that a certain sum of money was mistakenly transferred. The declaration would thus trigger a substantive duty to return the funds—but only if we recognize a substantive duty to correct injustices. So the real nub of the issue is: why we don’t recognize an underlying duty to correct an injustice?
Smith’s answer, which I find the most interesting part of his paper, is as follows:
To say that someone has a duty to do X is to say, roughly, that regardless of how costly or inconvenient X is, X must be done. Duties are correlative to rights, and rights, to borrow Ronald Dworkin’s terminology, are trumps. Thus we say (and the law confirms) that we have rights to physical integrity—and correlative duties to respect physical integrity—because we believe that, with rare exceptions, non-consensual interferences with another’s physical integrity are never permissible.
“Correcting injustices” is different than “not injuring”: it is a valuable thing to do, but it is not, or at least should not be, a duty. Private law duties are basically duties not to interfere with others’ persons, property, or liberty, and duties to keep contractual promises. The actions that are required to correct injustices have a different orientation. A failure to compensate a loss or to reverse an enrichment is not an interference with the beneficiary’s personal property or liberty; nor is it breaking a promise. It is simply a failure to correct an injustice. Correcting an injustice is valuable but failing to do so is not a wrong in the sense that stealing or lying or breaking promises is wrong. As a society, we regularly trade off the value of correcting injustices against other values. The courts clearly play a crucial role in correcting injustices….Yet it is clear that criminals are often not brought to court (or not pursued at all) because courts and prosecutors are in short supply.…[I]f our goal was to ensure that every injustice was corrected, there would be almost no limit to the number of courts, judges, lawyers, police officers and so on that the State ought to provide.” (P. 29.)
Summing up his point, Smith puts it thus: “Private law duties correlate to individual rights, but no one has a right that justice be done, and certainly not a right that another private individual ensure that justice be done.” (P. 30) This is not to say that the state may not concern itself with injustices, or that it may not refer them to the courts for resolution when it finds them. The fact that restitution cases are resolved by courts is enough to prove this point. But such adjudication is not, in a fundamental sense, the adjudication of rights. Instead, it is something that Smith calls the provision of “justice services”—the correction of an unjust circumstance that has arisen without any wrong being committed.
Smith’s article is both enlightening and thought-provoking. In explaining the phenomenon of rightless remedies—i.e., court orders untethered to underlying substantive rights—Smith shows us something important about both rights and remedies. In particular, he shows us how substantive rights are correlated with wrongs but always correlated with remedies. In doing so, Smith deepens our understanding of the complex relationship between the common law itself and institutions that both create and maintain it (i.e., the courts).
Cite as: Jack Preis, Rightless Remedies
(May 6, 2019) (reviewing Stephen A. Smith, Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action
, 27 N.Z.U.L. Rev.
1033 (2017), available at SSRN), https://lex.jotwell.com/rightless-remedies/
Every law student is told repeatedly to check that the cases they are relying on are still “good” law. They may even be told that not using a citator such as Shepard’s, KeyCite, or BCite could be malpractice and multiple ethics cases would support that claim. But how reliable are the results returned by these systems?
Paul Hellyer has published the surprising results of an important study investigating this question. Hellyer looked at 357 citing relationships that one or more of these three citators labeled as negative. “Out of these, all three citators agree that there was negative treatment only 53 times. This means that in 85% of these citing relationships, the three citators do not agree on whether there was negative treatment.” (P. 464.) Some of the differentiation between systems could be attributed to one system incorrectly marking a relationship as negative when it is not. This might be considered a less egregious mistake if one presumes that the researcher would review the flagged case and find no negative treatment, although it is a costly mistake in a field where time matters. However, Hellyer accounts for the false positive (or negative, in this case) problem and the results of his study are distressing.
We are told that the citators are reliable. I, along with numerous law professors and judges, have told students and attorneys that failure to use a citator could lead to anything from a judicial tongue lashing to disciplinary action to malpractice charges. As Hellyer points out (P. 450), the marketing for citators assures us that the systems produce reliable results. For example, KeyCite is marketed as “the industry’s most complete and accurate citator” and that you can be “confident you’re relying on valid law.” Similarly, the Shepard’s product page proclaims, “Is it good law? Shepardize® and be sure.” Bloomberg BNA is less boastful in its promotion of BCite stating, “Easy to use indicators…allow you to immediately (emphasis added) see how other cases have treated your case.”
Let’s look at some more data from Hellyer’s study, which he believes is “the largest statistical comparison study of citator performance for case validation” and the first to include BCite. (P. 450.) In addition to just looking at how the citators labeled the relationships, Hellyer assesses the case opinions to determine the nature of the citing relationship and whether it was correctly labeled by the citator. He differentiates between negative relationships that were not identified in any way and those that misidentified the relationship. An example of this would be if a case was in fact overturned but the citator labeled it as something else, such as “distinguished by.” When Hellyer examined whether the citators agreed on the subset of negative treatment, all three systems agreed on about only 11% of references.
Hellyer’s article is an important read for anyone who relies on a citator for case validation or, determining whether a case is still “good” law. The results are fascinating and his methodology is thorough and detailed. Before delving into his findings, Hellyer reviews previous studies and explains his process in detail. His dataset is available upon request. The article has additional value because Hellyer shared his results with the three vendors prior to publication and describes and responds to some of their criticisms in his article, allowing the reader to make their own assessment of the critique.
Even more interesting than the broader statistics, are Hellyer’s details of specific errors. He acknowledges that omission errors, as opposed to misidentification errors, were unpublished cases that might present less of a problem for attorneys. However, Hellyer goes on to examine the misidentification errors and concludes that all three citators exhibit the greatest issues not in identifying the cases but in the editorial analysis of what the citing relationship means. For example, in Hellyer’s dataset there were four cases later overruled by the United States Supreme Court. All three citators misidentified at least one citing relationship and one of them misidentified three of the four cases as something other than being overruled. Hellyer’s examination of these cases revealed how these misidentification errors can filter through to other citing relationships and create further errors. (Pp. 467-471.)
Analysis of citing relationships, and whether those relationships are positive and negative, is essential to the legal system and reliance on “good” law, or case validation, is the critical first step. Hellyer states that the results of his analysis mean “that when you citate a case that has negative treatment, the results you get depend mainly on which citator you happen to be using.” (P. 465.) This is a stunning assessment of a vital resource that is so widely and heavily relied upon by the legal community.
Cite as: Kristina Niedringhaus, Is it a “Good” Case? Can You Rely on BCite, KeyCite, and Shepard’s to Tell You?
(April 22, 2019) (reviewing Paul Hellyer, Evaluating Shepard’s, KeyCite, and BCite for Case Validation Accuracy
, 110 Law Libr. J.
449 (2018)), https://lex.jotwell.com/is-it-a-good-case-can-you-rely-on-bcite-keycite-and-shepards-to-tell-you/
International and domestic laws aimed at protecting children involved in human smuggling generally operate under the assumption that these children are vulnerable and defenseless prey to dangerous and violent criminals, for whom they work against their will. In her recent article, “Circuit Children”: The Experiences and Perspectives of Children Engaged in Migrant Smuggling Facilitation on the US-Mexico Border, sociologist Gabriella Sanchez uses original qualitative fieldwork to upend or at least nuance this claim that sits at the heart of current anti-smuggling laws. The children whose stories she tells offer a much more complex picture of their role in helping others navigate the U.S.-Mexico border.
While many scholars have decried the carceral turn in human smuggling laws, Sanchez offers a key piece of evidence demonstrating the fundamental problems with this move to criminalization. It is, as has been far too obvious of late, easy for politicians and governments to demonize actors in the migratory process, both migrants and those who help them to move. But the carceral approach masks the structural forces that render migration both necessary and nearly impossible to undertake lawfully for individuals who do not win the birthplace lottery. Sanchez’s body of work highlights the humanity and dignity of the individuals who facilitate migrant journeys—who might, from a different perspective, be viewed as part of a modern-day Underground Railroad. Though she refrains from hitting the reader over the head, the unmistakable take-away from her work is that these individuals are not the source of the problem; they are doing the best they can in the face of structural and geopolitical forces beyond their control.
Sanchez’s empirical research fills a crucial gap in the literature. Undocumented migration is by its very nature challenging to study; people moving outside the bounds of the law are not easy to track let alone interview. Sanchez engages with this challenge head-on to gather insights into the realities of human movement across borders that are often at odds with the assumptions animating laws that criminalize human smuggling. Her previous scholarship challenges popular depictions of migrant smugglers as ruthless criminals, using empirical work to demonstrate the symbiotic relationships and social networks that often connect migrants and those who facilitate their journeys. If migrants’ perceptions of smugglers rarely enter the legal or even scholarly discourse, it is rarer still to hear from children who participate in facilitating human movement across borders.
The voices of these children tell a story that, in Sanchez’s words, defies “the state-centric notion that the facilitation of informal, clandestine mobility strategies inherently constitutes a crime” as well as the assumption that “smuggling is the exclusive domain of organized crime.” Her interviews with 18 children aged 14 to 17 in Ciudad Juárez reveal conscious decisions to engage in smuggling that enabled them to support their families financially. These children empathized with the migrants, and appreciated the personal, social, and economic capital they gained through their smuggling work. Sanchez recognizes the risks faced by these children, but notes that they viewed law enforcement, especially U.S. Border Patrol, as the most fearsome danger.
Sanchez’s interviews raise the voices of a small group of children in one specific location. The story they tell cannot possibly be universal, but it raises important questions about the criminalization of migrant smuggling. Sanchez emphasizes that children involved in smuggling face serious risks, but refutes essentializing claims that all of these children are forced against their will to work for transnational organized crime. Their perspectives beg for further study, and starkly highlight the need for a reassessment of law’s carceral approach to migrant smuggling.
Cite as: Jaya Ramji-Nogales, Out of the Mouths of Babes
(March 19, 2019) (reviewing Gabriella Sanchez, "Circuit Children": The Experiences and Perspectives of Children Engaged in Migrant Smuggling Facilitation on the US-Mexico Border
, 11 Anti-Trafficking Review
103 (2018)), https://lex.jotwell.com/out-of-the-mouths-of-babes/
The recent report from the Intergovernmental Panel on Climate Change this fall has made clear the urgent need to address climate change. What should be the primary policy tool that we use to address the problem? Economists have vociferously advocated for the use of carbon taxes or cap-and-trade permit systems, on the grounds that they provide the most efficient way to decarbonize global economies. Yet carbon taxes have had little success in the political arena. Many of the existing policies that countries and states have used to address carbon emissions have been regulations or subsidies, not market-based approaches. Is this a fundamental misstep on the part of policymakers?
In her recent article, Energy, Governance, and Market Mechanisms, Alice Kaswan argues that this is not a misstep, and that in fact there are good reasons—political, democratic, even economic—to prefer non-market-based instruments to advance decarbonization. Her article is ambitious in its scope but effective in raising important questions about what approach is best.
Kaswan raises a couple of key points about why non-market-based mechanisms may be superior to address the transition to a decarbonized economy. First, she argues that government coordination of climate policies can allow the achievement of multiple goals in addition to reducing carbon emissions at the least cost (which is what market-based tools excel at). For instance, we might be concerned about the distributional impacts of a transition to a decarbonized economy and adding on social equity measures to market-based tools may not be as effective as a fully integrated approach. Similarly, there are a lot of additional issues we are concerned about in energy production than simply carbon emissions (e.g., bird mortality from wind turbines, or long-term waste disposal from nuclear power), and a price on carbon alone cannot help us resolve those tradeoffs.
Second, Kaswan argues that long-term planning is an essential component of a transition to a carbon-free energy system, given the interconnectedness of a wide range of elements of our energy systems and the long timeframes for many investments in those systems. According to Kaswan, market-based tools may not be the most effective in managing these kinds of planned transitions—particularly if carbon prices are low, and so far we have only observed relatively low carbon prices in practice.
Third, Kaswan argues that public participation would be more robust for non-market-based regulatory measures, and that this public participation will result in a more equitable and more accountable approach to carbon reductions. And finally, Kaswan argues that non-market-based mechanisms appear to be more politically realistic than stringent market-based tools—something that has been quite apparent this fall as the French protest against a new gas tax and Washington state voters turned down a carbon tax proposal.
One law review article will not be able to conclusively answer any of these difficult questions about the role of market-based mechanisms in climate policy—the challenge spans the entirety of the modern economy, across countries with very different political and cultural settings, and an incredible range of technical problems. But Kaswan’s piece is a vital starting point for the now-vibrant debate about which policy approaches will be more successful, and an important counterpoint to a policy discourse that has mostly been dominated by advocates of carbon pricing. Even if you don’t agree with her arguments, Kaswan’s analysis should give you important points to consider.
Andrew Hammond, Pleading Poverty in Federal Court
, Yale L. J.
(forthcoming). Available at SSRN
In United States v. Kras, the Court rejected the argument that a poor person petitioning for protection from creditors should not have to pay a filing fee in order to access the bankruptcy system. The majority held that an able-bodied person could make the payment because the $50 fee was only $1.92 per week if spread over six months and $1.28 if spread over nine months. Justice Blackburn noted that such a fee at the time was “less than the price of a movie and little more than the cost of a pack or two of cigarettes.” Justice Thurgood Marshall’s dissented, observing:
It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are….A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have….
For the poor, fees, even supposedly “nominal” fees, matter. In the civil law context, Congress has established a $350 filing fee to access the federal courts and the Judicial Conference tagged an additional $50 administrative fee onto that. (P. 12.) While the non-poor may be able to treat the combined $400 fee as a mere inconvenience, such an amount can serve to bar poor civil litigants from the federal courts.
Andrew Hammond’s article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond’s article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for what information is collected and for the level of need that is associated with a fee waiver. Blending empirical work—a significant contribution of the article is that it catalogues the in forma pauperis forms used by all 94 federal district courts—with an appreciation for the struggles faced by poor litigants, Pleading Poverty in Federal Court is a well-written, targeted intervention that hopefully will improve the ability of the poor to access the federal courts.
The article includes a number of eye-opening details. The Southern District of Alabama asks litigants to provide the makes and models for their “automobiles, boats, [and] motorhomes.” (P. 18.) Puerto Rico’s district court asks movants if they have income from horse racing and gambling. (P. 21.) These variations are arguably less striking than the fact that different judges in the same federal district court can have different standards and practices when it comes to their review of in forma pauperis motions. As Hammond notes, “Some judges might use 100% of the federal poverty guidelines (FPL) as their threshold. Others will use 200%. Some will simply have their law clerk review the form and make a determination based on the information provided.” (P. 27.) Even putting aside the problem of variation across districts, there are many problems with leaving in forma pauperis discretion to each judge in the same district court. It can make the question of whether a poor litigant can get into the courtroom wholly arbitrary, tied to whether the assigned judge is someone who gives waivers easily or someone who rarely gives a waiver. Moreover, review of in forma pauperis motions forces judges to “make complicated, arcane poverty determinations—often reconciling a dozen categories of income with a dozen categories of expenses,” which Hammond argues is not a good use of the scarce time of an Article III judge. (P. 28.) (While I appreciate Hammond’s point, part of me is glad that this process forces judges to confront the poverty of some of the litigants, to look at the details of their lives. Such examinations may often be technically irrelevant to the proceeding but they may nevertheless help judges see both trends and the full person before them.)
In addition to the complications for federal judges associated with variation in the standards used by district courts when it comes to in forma pauperis motions, Pleading Poverty in Federal Court highlights the impact overly detailed information collection can have on poor litigants. Though Hammond’s article focuses on federal court practices, it includes a similarly impressive catalogue and overview of how state courts consider in forma pauperis motions. Just as in the federal courts, variation abounds across state courts. But Hammond also observes that states have adopted a number of practices that simplify the process of applying for a fee waiver, including establishing presumptive eligibility for fees to be waived based on: (a) a pre-determined multiple of the federal poverty line, (b) receipt of particular means-tested welfare benefits, or (c) representation by legal aid attorneys. (P. 40.) Moving away from overly intrusive information collection towards a system that partly piggybacks on the means-testing work of other entities, supplemented by a simpler form, would help judges and poor litigants. Khiara Bridges shows in The Poverty of Privacy Rights that the law strips the poor (but not the middle and upper class) of their privacy—often as a condition of receiving means-tested benefits—in ways that use information as a means of control. Although looking at a particular area of civil procedure as it relates to the poor and not the entire legal landscape, Hammond’s argument that “a streamlined, shorter form makes the process more sophisticated and more accurate, while preserving the dignity of poor people” (P. 57) fits nicely alongside Bridges’ work.
Some of the best poverty law articles—for example, Lucie E. White’s Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G. and Barbara Bezdek’s Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in Legal Process—get their strength from qualitative observations of the courtroom experiences of the poor. Pleading Poverty in Federal Court adds an empirical dimension to such participant-centered works. By pulling back the curtain on federal court practice and the high level of variation in what courts require of poor litigants, as well as their different standards for granting fee waivers, the article provides a valuable contribution to the literature on how the poor experience the law. Hammond shows how reforming a single element of civil procedure, standardizing federal in forma pauperis practice, can help open federal courthouse doors to the poor a bit more.
Scholarship that translates and connects one discipline to another is a special treasure. The need for this type of scholarship is especially great in immigration law. Immigration law is interwoven with many other disciplines, but immigration law scholars often are so occupied with the extreme complexity and immediacy of the legal discipline that it can be difficult to branch out. I’m selfishly fond of The Economics of Immigration Reform by Howard Chang because it does a great service to those of us who needed a lucid and approachable explanation of the economics behind immigration law reform. Professor Chang explains in detail why immigration restrictionists are wrong when they argue that less immigration makes economic sense. If less immigration is desirable, it is not for economic reasons.
Professor Chang uses economic theory to evaluate recent legislation proposed to restrict legal immigration. Along the way, Professor Chang examines two major economic studies that both concluded that immigration produces a positive fiscal impact, one from 1997 and one from 2017. In the process of using the studies to evaluate proposed limits on immigration, Professor Chang teaches us that the assumptions underlying any economic study affect outcomes.
The 1997 study by the National Research Council (NRC) adopted a baseline, “most reasonable” scenario using one set of assumptions and concluded that an average immigrant had a positive fiscal impact of $80,000 in net present value in 1996 dollars. The 2017 study by the National Academies of Sciences, Engineering and Medicine updated the NRC study. While both studies produced a range of estimates of fiscal impact based on various assumptions, the 1997 NRC study more definitively adopted a set of assumptions as “most reasonable.” The 2017 study did not do that. Even so, the 2017 study still concluded that immigrants have a positive fiscal impact. Using the same set of assumptions recommended by the 1997 study leads to a positive fiscal impact of $279,000 in net present value in 2012 dollars.
Why did the 2017 study take a more “agnostic” (P. 7) approach about adopting one set of assumptions as most reasonable? Professor Chang states that it “may be a response to the objections raised by the economist George Borjas,” (P. 7) who objects to the NRC’s “most reasonable” assumptions. Professor Chang is not a fan of the agnostic stance. He believes some of the assumptions allowed by the National Academies study are not appropriate, and he supports the NRC adopted baseline.
The treatment of public goods is one example Professor Chang uses to highlight the importance of examining the assumptions that underlie economic analyses of immigration. The cost of a public good does not rise with the size of the population and use of a public good does not prevent another person from using it. National defense is an example. All government services are not public goods. Services that are congestible, like roads, police services, and libraries, are not public goods. Professor Chang criticizes the National Academies study for presenting estimates of immigrant fiscal impact that treat public goods as congestible services. Professor Chang is not impressed with the National Academies’s justification for its presentation of public goods as congestible goods; the justification seems to undercut the concept of a public good, suggesting that public goods could be affected by population size. Even under the National Academies’s more conservative assumptions that treat public goods as congestible, however, immigration still produces a net fiscal benefit. (P. 10.)
What about the effect of immigration on the wages of native workers? The more conservative National Academies study concluded that the least skilled native workers (high school dropouts) may feel more negative effects of immigration compared to others, but that the negative effects tend to fade after 10 years. (P. 20.) As Professor Chang explains, the demand for labor fluctuates. Therefore, immigrants do not arrive and compete for a fixed pot of jobs. Also, native born and immigrants are “imperfect substitutes.” (P. 21.) They often do not compete for the same jobs and complement each other instead. Therefore, immigration does not significantly lower the wages of native workers.
Professor Chang concludes that, based on economic analysis, our immigration laws are unduly restrictive. Adoption of reasonable assumptions shows that immigrants contribute a positive fiscal impact and that immigration restrictions do not significantly lower the wages of native workers. Therefore, if fiscal impact were the only consideration, higher levels of immigration would be the natural policy result.
The reality, however, is that immigration policy is not formulated based on economic considerations alone, and immigration policy often diverges from the rational path. Professor Chang shows us a prime example of this by examining the RAISE Act, an immigration reform bill supported by President Trump. The RAISE Act aims to cut immigration across the board, which would work against economic interest. It also would eliminate pathways for younger immigrants, which is counterintuitive based on evidence that younger immigrants contribute more over the course of their longer lives in America. (P. 17.)
Professor Chang asks a very important question. If immigration is an economic win, “why not liberalize our immigration laws?” As far as economics is concerned, our immigration policies should be liberalized. Professor Chang’s article is helpful in allowing non-economists to understand why that is so and why immigration restrictionists should not be allowed to hide behind economic arguments.
“For ‘tis the sport to have the engineer / Hoist with his own petard.”
William Shakespeare, Hamlet, Act III Scene iv.
Happy is the litigator who successfully turns an argument against the adversary who propounded it. The joy is no less delicious for an academic. Professor Sanne Knudsen tries to turn the trick against the conservative majority of the current Supreme Court in her tidy article, The Flip Side of Michigan v. EPA: Are Cumulative Impacts Centrally Relevant?
Knudsen has gone to war against the narrow, atomistic thinking that, in times of both regulatory advance and retrenchment, has characterized much of environmental policy. Flip Side seeks to infiltrate comprehensive analysis across a broad front of agency decision-making, strengthening environmental regulation under cover of a court decision that struck down a major pollution-control rule.
Flip Side begins by analyzing the Michigan v. EPA opinion, in which the Supreme Court, per Justice Scalia, ruled 5-4 that the Clean Air Act requires EPA to consider industry’s costs of compliance when deciding whether it is “appropriate and necessary” to regulate mercury emissions from power plants. Knudsen avoids, or rather just dips a toe into, several scholarly debates the opinion generated. Did EPA lose at Chevron step one, because the statutory term “appropriate” unambiguously includes cost considerations, or at Chevron step two, because it is unreasonable to exclude cost considerations when construing ambiguous statutory language? How strongly did the Court endorse cost-benefit analysis as a mandatory component of environmental regulation? How broadly will the mandate to consider costs be applied in other statutory contexts?
For Knudsen’s project, the resolutions of those debates are not terribly important. What matters, she argues, are three salient features of Michigan v. EPA: First, that the Court held that a statute required EPA to consider a factor not explicitly mentioned in the statute’s grant of regulatory authority. Second, that the Court conflated review of EPA’s statutory construction with review of the rationality of EPA’s decision. And third, that the Court expressed this conflation broadly rather than through a tight focus on the specific statutory words at issue. That Knudsen draws support for her reading from both Cass Sunstein and Lisa Heinzerling suggests she is on to something.
From these features, Knudsen crucially infers that the method of Michigan v. EPA need not be limited to cost considerations, need not hinge on details of statutory language, and need not be limited to the Clean Air Act. As she puts it, Michigan v. EPA stands for the proposition “that factors which are presumptively indispensable to nonarbitrary decisionmaking must be considered.” (P. 20.) And that frees Knudsen to ask her central question: what other factors, in addition to cost, fit that description?
To answer, Knudsen turns to science to argue that cumulative impacts, no less than compliance costs, are so centrally relevant to environmental policy decisions that they must be considered in any rational regulatory process. For someone with Knudsen’s background in environmental engineering—or with any background at all in ecology or environmental science—this part of Flip Side’s argument takes little effort. Citing examples of climate change, chemical exposure, water quality and supply, and introduced species, Knudsen shows convincingly that interconnectedness and interaction pervade the subjects that environmental statutes address.
Failing to regard these relations when making environmental policy, Knudsen argues, systematically understates the risks presented by environmental contamination, undervalues the public health benefits of regulation, and underestimates the environmental impact of government activity. To view each regulatory or resource management decision in isolation, ignoring the cumulative impact of that decision combined with other relevant governmental or non-governmental actions, Knudsen argues, is to ignore a critically important aspect of the problem. And that, she concludes, is arbitrary and capricious under Michigan v. EPA.
Flip Side concludes with a brief consideration of how environmental policy could improve if agencies knew that their decisions must take account of cumulative impacts in order to survive judicial review. Such a requirement, for instance, could help defend EPA’s practice of including co-benefits (those caused by, but incidental to, meeting the intended regulatory target) in regulatory impact analyses. Knudsen further gives examples of a Minnesota statute that requires consideration of cumulative impacts when issuing air pollution permits, of the potential of evaluating cumulative toxicity risks in chemicals regulation, and of an EPA Region 9 effort to consider cumulative impacts on surface water quality when issuing pollutant discharge permits. In each of these media-specific regulatory programs, Knudsen shows, requiring cumulative impact assessment would bring agency decisions into better alignment with the public health and environmental protection goals of the statutes being implemented.
For litigants that may wish to challenge future agencies that deregulate or decline to regulate without considering cumulative impacts, Flip Side provides a generalized strategy. The strategy is not without its risks. As Knudsen acknowledges only in passing, rigorous evaluation of cumulative impacts is in many contexts difficult to nearly impossible. Even where information exists that would permit some cumulative impact analysis, the exercise presents difficult line-drawing problems: if it is arbitrary and capricious to act without considering cumulative impacts, how far must the analysis extend to survive judicial review? Of course the Supreme Court, in interpreting environmental statutes including the National Environmental Policy Act, the Endangered Species Act, and the Comprehensive Environmental Response, Compensation and Liability Act, has asserted that it is easy to answer such questions by importing concepts such as proximate cause from the common law of torts. Nevertheless, the possibility that courts might misuse Knudsen’s clever argument gives one pause.
On the other hand, Knudsen’s idea may have even more potential than she presents in Flip Side. Her fundamental point, that interactions in complex systems must be considered in formulating rational environmental policy, could be applied also to the cost side of the cost-benefit computation. Experience shows that initial predictions of compliance costs are usually exaggerated. This is not surprising, given the incentives that face a regulated industry before and after a new requirement is promulgated. If Michigan v. EPA means agencies must always consider costs before deciding to regulate, Flip Side implies that courts should welcome, even demand, agency approaches that treat costs in a more dynamic, systems-oriented way.
A petard was a primitive type of grenade, an explosive charge that was intended to breach defensive walls but that often blew up the person planting it. In The Flip Side of Michigan v. EPA, Sanne Knudsen has lobbed a grenade that should explode the walls that constrain environmental regulation into a series of individual decisions analyzed as if ceteris paribus were a description of reality instead of an analytical convenience. It should open a frame for policy-making that will more fully account for regulatory benefits and for the environmental impact of proposed actions while correcting the exaggeration of regulatory and opportunity costs.
With a deeply anti-regulatory ideology currently gripping all three branches of the federal government and many of the states, Flip Side’s thesis is unlikely to be enshrined in the administrative law canon anytime soon. In the fullness of time, however, Knudsen’s argument may—to end with a different metaphor—make some lemonade out of the environmental lemon that is Michigan v. EPA.
Amna Akbar’s latest article takes sharp aim at the collectively constrained imagination of current legal scholarship and liberal reform agendas focused on the criminal legal system. And rightly so. She demonstrates that, with notable exceptions, we are mired, and almost lost, in our collective belief that the problems of the criminal legal system are problems of bad actors, bad seeds, and badly-implemented laws. She shows us that so many of the solutions we cling to will do nothing to address the systemic violence so prevalent in poor communities of color. She warns that answers do not lie in “investing even-handedness to law or the police…restoring criminal justice to some imaginary constitutional or pre-raced status quo,…[or] increasing resources for community policing.” (P. 105.) Instead the goal is transformative: to “[shrink] the space of governance now reserved for policing, surveillance, and mass incarceration; and fundamentally [transform] the relationship among state, market and society.” (P. 104.)
Despite this searing and far-reaching indictment of a wide swath of scholarship and advocacy, Akbar forgoes calling for either shame or despair. There is no time for either. Instead, by centering the radical, positive, and, love-inspired visions of the Movement for Black Lives and foregrounding their vision of “a world in which Black and other communities of color can thrive” (P. 120), Akbar offers hope.
Akbar performs this remarkable feat through a comparison between a central policy platform of the movement, A Vision for Black Lives: Policy Demands for Black Power, Freedom and Justice, and the reports issued by the Obama Administration’s Department of Justice (DOJ) on the policing practices in Ferguson, Missouri and Baltimore, Maryland. These DOJ reports were, of course, written in the wake of the police shootings of Michael Brown and Freddy Gray respectively. The Movement for Black Lives too, finds its spark (but not its roots) in these and other contemporary moments of state violence. But, as Akbar easily proves, the two sets of documents differ radically. There is much to praise in the DOJ reports, and Akbar gives them their due. But in the end, what is missing is the central understanding, at the heart of contemporary racial justice movements that “policing, jail and prison [are] the primary mode[s] of governing Black, poor, and other communities of color in the United States.” Law here is not a fundamentally just system that has gone astray but is instead the scaffolding upon which this violent system is built. (P. 108.)
This is a searing critique and might lead one to turn away or to despair any possibility of forward movement. But fear not. Akbar’s project, like the Vision, is not only “deconstructive and critical” but also “reconstructive and visionary.” (P. 171.) This is clear throughout, but for the purposes of this jot I want to focus on her discussion of the Vision’s calls for abolition and to “invest/divest.” The demand to abolish policing and prisons as we know them is central to the Vision and the Movement. (P. 154.) But abolitionism today, as in the past (see P. 154 fn 268), seeks fundamentally to build as well as to abolish. And “building” is not a static demand for a far-off future but instead an ongoing practice of “gradual decarceration and positive regulatory substitution.” (P. 155.) So for example, “[m]ovement organizations are ‘practicing abolition every day…by creating local projects and initiatives that offer alternative ideas and structures for mediating conflicts and addressing harms without relying on police or prisons.’” (P. 155.)
And as the Vision counsels, we must not only divest but invest. Take police in schools as one small example. While the DOJ reports recommend “better training, evaluation, and policies to improve the school police program,” (P. 156) the Vision calls simply for the “end to the criminalization of Black Youth.” (P. 156.) Under this demand, police are implicated in violence and have no place in creating an educational environment where Black Youth can thrive. But leaving (or divesting) isn’t enough. Funds currently invested in “prisons, police and surveillance,” (here police in schools) would be “invested instead [in] restorative services, mental health services, job programs, meaningful healthcare, and education.” (P. 155.)
Next a word on economics and power. While the DOJ reports, and much of the scholarship and advocacy efforts Akbar critiques, focus narrowly on policing and criminal legal systems while avoiding any discussion of the interests served by these systems, both Akbar and the Vision center these issues. Take for example, the work of one movement group, the Youth Justice Coalition (YJC) highlighted by Akbar. The advocacy work Akbar highlights focused on gang injunctions. (Pp. 151-52.) YJC’s analysis demonstrated that injunctions are targeted not at the communities with the highest rates of gang violence but instead at communities that are “majority white, that border white communities, or that are experiencing an influx of whiter and wealthier residents.” (P. 152.) In this frame, the policing tool—gang injunctions—is not actually broken. Instead it is functioning precisely as it is designed to function—in the service of those whose economic and racial interests the system is in fact designed to serve.
Failing to highlight the way that such a strategy promotes the economic interests of those in power “erases how power circulates through and benefits from formal law-making.” (P. 110.) Finally, to divest away from carceral structures that do violence and invest in institutions (created through law) that will help communities thrive, communities do not need mere input but instead power and control. Without this, nothing else matters.
As Akbar counsels at the conclusion of her article, it is time to let loose our hold on the law as it exists, stop tweaking around the edges of a fundamentally violent system, and instead “imagine with social movements” the role law can play in creating a radically better world. If that’s not a cause for hope, I don’t know what is.
Cite as: Wendy Anne Bach, Hope
(November 9, 2018) (reviewing Amna Akbar, Toward a Radical Imagination of Law
, 93 NYU L. Rev.
405 (2018)), https://lex.jotwell.com/hope/
Karen Levy, Lauren Kilgour, & Clara Berridge, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws
, 26 Elder Law J.
__ (forthcoming 2018) available at SSRN
A nursing home can be a dangerous place. Undetected abuse and neglect are common. Frustrated with the inadequacy of government oversight, some families have taken matters into their own hands and installed in-room video monitoring devices. In this way, privatized abuse prevention efforts can identify and rectify that which the camera records. The increasing use of so-called “granny cams” has led to legislative responses in at least six states—Illinois, New Mexico, Oklahoma, Texas, Washington, and Utah. These statutory frameworks are thoughtfully examined by Karen Levy, Lauren Kilgour, and Clara Berridge in their forthcoming article, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws.
The covert use of technology such as web-enabled video cameras to “peek in” and also preserve evidence of inadequate care, abuse, or exploitation may be well-intentioned. The overt placement of cameras might help to deter abuse from occurring in the first place. Privacy and autonomy concerns, however, might be overlooked. As these three co-authors explain, the interests of the resident, their roommates, their visitors, and their care workers—even, to some degree, the institutions themselves—merit scrutiny: “These multivalent privacy dynamics create a complicated space for law.” (P. 3.) Indeed, this complex relational space has given rise to strikingly varied legislative fixes. Levy, Kilgour, and Berridge study a relatively unstudied problem with sensitivity and thoroughness.
Initially, this article enters the nursing home setting and explores the relational, interdependent nature of privacy in that space. A nursing-home room is an intimate, personal space for the often vulnerable individuals who live in them. In that space, residents (as well as their roommates) may receive personal care. They may share intimacy with their partners. They may be examined by their doctors. They may change clothes. They may masturbate. A nursing home room can also be a private space for parties visiting those individuals, such as their spouses, their children, or even their attorneys. At the same time, a nursing home room is a closely regulated space where states monitor and structure conduct, especially that of staff. “Electronic monitoring in nursing homes, and the rules which regulate it, thus enter a particularly fraught context, in which the aims and targets of privacy protection, and the perceived threats thereto, are multivalent and interact in complex ways.” (P. 6.)
Having detailed the unique privacy intersections within a nursing-home room, the authors next assess how the law has entered that fraught space. Here, the authors deploy a comparative analysis and identify the salient aspects of the varied approaches that six states have taken. While each statutory paradigm permits in-room monitoring devices by a resident or their representative, the authors highlight significant variation in the ways in which competing privacy interests are balanced. Some states delineate notification and consent forms. Some attempt to police against institutional retaliation. Some require signage or ban covert cameras. Some permit roommates to switch rooms when a camera is introduced. Some constrain the positioning (e.g., allowing only fixed-position cameras) and precision (e.g., focus, volume, etc.) of data collection. New Mexico requires data encryption when a monitoring device is web-enabled. Utah simply bans any device which can transmit recordings. State approaches lack uniformity in addressing the admissibility of recordings in judicial or administrative proceedings. Abuse-reporting requirements and liability limitations vary as well.
Finally, the authors map privacy relationships within these legislative approaches. A significant number of nursing home residents may lack the capacity to consent to in-room monitoring or to condition consent upon limitations. The majority of the statutes analyzed by the authors confirm that a resident’s fiduciary (such as an agent or a guardian) can consent to recording on the resident’s behalf. Washington, interestingly, permits residents’ representatives to authorize visual video monitoring, but not audio, absent a court order.
Sadly, the most common perpetrators of elder abuse are adult children and spouses. These are the individuals typically acting as elderly individuals’ representatives. As a result, the most likely perpetrators are the ones collecting recordings. For the most part, states have failed to account for potential abuse by a representative. Mistreatment by a representative is unlikely to be captured by a monitoring device, and if it is, the representative controls the captured data. Indeed, a representative might use embarrassing footage to intimidate or extort. This potential for misuse must be carefully balanced against gains in documenting abuse by nursing home staff or others, but so far it hasn’t been adequately considered.
Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws is an important and elucidating discussion of these kinds of important policy issues. Its comparative mapping could serve as an effective guide to future legislative efforts. And its explication of competing privacy interests demonstrates a mature sorting of recurring intersections of human interests in the nursing home space. I recommend it.
Cite as: Tom Simmons, Privacy and Surveillance in Nursing Homes
(October 8, 2018) (reviewing Karen Levy, Lauren Kilgour, & Clara Berridge, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws
, 26 Elder Law J.
__ (forthcoming 2018) available at SSRN), https://lex.jotwell.com/privacy-and-surveillance-in-nursing-homes/
Under the Trump administration, each week brings a new attack on due process and on substantive protections for migrants. Sacred cows such as Temporary Protected Status for Salvadorans, which had been extended by Democratic and Republican administrations alike for the past two decades, are dispatched with alacrity. Attorney General Sessions appears intent on destroying the immigration adjudication system, demanding that immigration judges meet unrealistic case completion goals and reversal rates while limiting the resources available to the system. Migrants’ rights are a constant source of litigation, from highly anticipated Supreme Court judgments to battles fought through amicus briefs before the Attorney General.
Beyond the momentary relief of deft political satire, a comparative glimpse across the pond can provide helpful perspective on the situation at home. Vladislava Stoyanova’s forthcoming article reminds us that we are not the only nation facing populist movements that “exploit public anxieties over migration” in order to “curb immigration and restrict the rights of migrants.” Her rigorous and painstaking analysis of the European Court of Human Rights (ECtHR) decisions prompts analysis of larger philosophical questions about law’s paradoxical approach to migrants’ rights and offers a provocative new concept: populist judicial reasoning.
Stoyanova begins with a brief definition of populism and its relationship to migration, explaining that “migrants are…excluded from ‘the pure people’ that populists claim to exclusively represent.” She then poses a question that has haunted scholars of immigration law since the first week of the Trump administration: can courts act as effective points of resistance against populism?
As her title suggests, Stoyanova’s analysis focuses on the European human rights system, which offers an effective supranational framework absent in the U.S. context. Yet the parallels with legal protections for migrants available under the U.S. Constitution are still rich. Stoyanova notes that the ECtHR “acts with restraint and sides with the sovereign” when it comes to migrant rights, an apt description of our highest court. There is a difference in motivation; in extending rights to migrants, the European court has concerns about its own legitimacy that have little bearing on the U.S. Supreme Court.
And of course, Stoyanova explores a right that doesn’t exist under the United States Constitution: the right to family life found in Article 8 of the European Convention on Human Rights. In her words, she explores ECtHR responses to “exclusionary nationalist anti-migrant dimension of the populist turn when adjudicating cases implicating the rights of migrants.” Stoyanova dives into the technical details, critically examining the procedural steps the European Court takes to analyze migrants’ right to family life.
The examination is fruitful; it is here that she uncovers the court’s affinity for populist tools. As the court works to avoid acting as a point of resistance to the sovereign, it sets to one side the careful legal reasoning required of courts and instead adopts the populist method of decisionmaking without critical analysis. This is a provocative and rich idea, and this reader wished only that Stoyanova had engaged in deeper theoretical analysis around it. She does provide ample analytical support for her idea, noting four ways in which the court dances with populist tools. The ECtHR assumes a conflict between migrant rights and community interests without examining arguments that upholding migrants’ rights to family life is in the best interest of the community. The Court accepts the state’s general invocation of immigration control prerogatives, rather than requiring the sovereign to clearly articulate specific aims animating its denial of the right to family life. The ECtHR doesn’t engage in any rational or factual scrutiny of the goals offered by the state, and represents migrants’ rights as exceptional. This careful analysis of the case law is instructive, building a strong case for her populist reasoning argument.
Stoyanova also examines critically the ECtHR’s characterization of Article 8 as a positive obligation in the case of migrants who are unlawfully present. This determination contrasts with the treatment of migrants who lose their previous immigration status and can therefore claim Article 8 as a negative obligation. She exposes the analytical flaws in the ECtHR’s approach, explaining that expulsion disrupts family life and “is a clear action attributable to the state irrespective of the formal migration status of the person.” This downgrading of rights for migrants unlawfully present is paralleled in U.S. constitutional law, and Stoyanova’s analysis offers food for thought in debates over that approach as well as arguments about whether removal should be treated as a civil or criminal penalty given its harsh consequences.
As with U.S. Constitutional law, Stoyanova points out that migrants’ rights have long been a weak point of human rights law. In the battle between statism and cosmopolitanism, the sovereign has consistently prevailed. Her article points to the vacuum in legal reasoning that has led to that outcome, and presents us with a new way to frame this transnational phenomenon: populist judicial reasoning. Though neither the ECtHR nor the U.S. Supreme Court is currently doing so, Stoyanova’s detailed critical analysis demonstrates how these courts could act as effective sites of resistance against populism if only they had the will.
Cite as: Jaya Ramji-Nogales, Populist Judicial Reasoning
(September 10, 2018) (reviewing Vladislava Stoyanova, Populism, Exceptionality and the Right of Migrants to Family Life under the European Convention on Human Rights
, 10(2) Eur. J. of Legal Stud.
83 (2018)), https://lex.jotwell.com/populist-judicial-reasoning/