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Medicaid Algorithmic Opacity and a Transparent Solution

Hannah Bloch-Wehba, Access to Algorithms, 88 Fordham L. Rev. 1265 (2020).

In Access to Algorithms, Professor Bloch-Wehba unleashes both the First Amendment and FOIA (the Freedom of Information Act, along with its state counterparts) on algorithmic governance opacity. She argues that the law of access encompassed by FOIA and the free press clause can help promote a public debate of algorithmic decision-making by governments as well as provide avenues by which individuals–especially under-resourced individuals–might find redress for the sometimes catastrophic output of automated systems.

Algorithmic decision-making in the context of law enforcement (such as sentencing and bail) has been mapped by and Bloch-Wehba’s article touches on algorithmic criminal law determinations here as well. In addition, she unpacks algorithmic operations which affect government employees, specifically using “value-added assessments” to quantify teacher effectiveness, which has been challenged by teachers’ unions. But her attention to algorithmic denials of Medicaid benefits has heretofore received scant attention.1 Especially because elderly Medicaid applicants and recipients seeking long term care benefits are almost by definition under-resourced individuals, the opacity of algorithmic decision-making in this context deserves careful examination. But the very opacity of algorithmic operations which generate denials or reductions of public benefits presents a challenge for scholars as well as the citizens who bear the brunt of the automated decisions.

Governmental decision-makers tend to hold their algorithms close to their chest. Making matters worse, much algorithmic decision-making software is privately controlled. The trend is toward outsourcing. The private companies which develop the algorithms are obviously keen to retain their value and not simply leak their mechanics into the public domain. Secrecy is an even more acute problem when the algorithms themselves are outsourced to and controlled by private vendors. The problems of faulty decisions as well as bias embedded in the machine can be difficult to unearth and correct.

Bloch-Wehba examines two Medicaid examples in reported federal court opinions. In the first, APS Healthcare, Inc., a private “waiver administrator” slashed the Medicaid waiver benefits of a group of West Virginians with severe developmental disabilities. The company’s algorithm generated a budget which allocated benefits to individual Medicaid recipients on a year-by-year basis, using data from interviews and other assessment tools. The actual workings of the algorithm that slashed the plaintiffs’ benefits was proprietary. One plaintiff with cerebral palsy had her benefits cut from $130,000 to $72,000. As a result, she lost her community placement, declined, and became at serious risk to institutionalization.

Before an Administrative Law Judge, the West Virginia plaintiffs’ fair hearing was denied based on deference to the computer program–without investigation into the conclusions it had reached. Thankfully, the district court correctly perceived the procedural due process problems and reversed.

In a second Medicaid case arising in Idaho, plaintiffs challenged the decisions of a secret methodology to set individual budgets for home and community-based waiver benefits. In this case, the algorithm–“an Adult Budget Calculation Tool”–was government-sourced, but the state resisted disclosure of its methodology, claiming it was a trade secret. The state then offered a compromise: it would disclose the reasoning behind the plaintiffs’ benefit reductions but subject to a gag order that would prohibit redisclosure to anyone else. Although the plaintiffs ultimately prevailed, Bloch-Wehba identifies the invocation of a trade secret defense and the state’s “atomized disclosure” settlement offer as “highly problematic.” (P. 1279.)

After detailing the scope of the problem, Bloch-Wehba identifies a creative and effective solution. She emphasizes that the law of access provides a particularly useful tool in de-cloaking government methodologies to deny rights, property, or liberty. The law of access expands standing. It facilitates access to algorithms not only for the directly affected but also the general public–even scholars and journalists.

Here is a uniquely practical solution to a serious problem. One need not be a plaintiff to demand that algorithmic veils of opacity be lifted. She explains: “If the processes for government decision-making were already public, litigants would not have to fight tooth and nail to gain access to an explanation of why their benefits were slashed, their employment was terminated, or their release from prison was delayed.” (P. 1295.) To advance toward these practical ends, she maps the nuances of FOIA exemptions commonly in play in these sorts of contexts.

While undoubtedly practical, at the same time, Access to Algorithms resonates with foundational questions of value and justice. Although “algorithmic governance portends a new era in government decision-making, it must be accompanied by new forms of transparency to protect the vital role of public oversight in our democratic system.” (P. 1314.) Readers of her important article will surely agree.

  1. But see Katie Crawford & Jason Schultz, AI Systems as State Actors, 119 Colum. L. Rev. 1941 (2019) (taking note of algorithmic decision making in the context of disability benefits as well as Medicaid).
Cite as: Tom Simmons, Medicaid Algorithmic Opacity and a Transparent Solution, JOTWELL (September 16, 2020) (reviewing Hannah Bloch-Wehba, Access to Algorithms, 88 Fordham L. Rev. 1265 (2020)),

Towards a Unified Theory of ADR

Andrew B. Mamo, Three Ways of Looking at Dispute Resolution, 54 Wake Forest L. Rev. 1399 (2019), available at SSRN.

Advocates of alternative dispute resolution (ADR) often talk about the “ADR Movement” as if it were…well…an actual movement. We know what the phrase means, or at least we think we do. Since the 1970s, the popularity of extra-judicial mechanisms for conflict resolution–arbitration, mediation, negotiation, and restorative justice–has risen sharply. Over the same period, these procedures have become highly professionalized areas of study and practice. But is there a coherent “ADR Movement,” with a capital “M,” based upon a unified legal philosophy?

Not so much. In his comprehensive article, Three Ways of Looking at Dispute Resolution, Andrew Mamo carefully unravels the divergent philosophical strains that have supported the expansion of ADR over the past half-century. He explains the history of ADR against the broader backdrop of American legal and political history.

One of the reasons that this article is such a helpful contribution to the history of American civil procedure is the increasing centrality of ADR. Whether there is an “ADR Movement” or not, ADR’s constituent parts have become vastly more important in recent years. The general academic consensus has long been that trials are no longer the central means of conflict resolution in the United States. Some scholarly analysis suggests that well over 95% of all civil lawsuits end in settlement before trial. There are many possible explanations for this trend. Some point to judges taking a highly managerial approach to encourage settlement; others point to the increased professionalization of mediation services; and others point to the substantive benefits of arbitration over litigation for many types of commercial disputes. While criminal disputes present different sets of problems, scholars have observed both the increase in criminal plea bargaining (a form of negotiation), as well as the potential benefits of restorative justice mechanisms over traditional jury trials.

One might expect to find some sort of common denominator among these various trends. But as the title of his article suggests, Professor Mamo traces modern “ADR” to three distinct political philosophies.

First, he identifies a “liberal, state-centric, rights-based approach.” This approach looks at the relationship of ADR processes to traditional litigation, particularly in the context of court-annexed mediation and arbitration programs that primarily aim to lighten overcrowded court. Mamo traces this branch to the 1976 “National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice” convened by Chief Justice Warren Burger where Professor Frank Sander famously introduced the concept of a multidoor courthouse–the idea that courts should “sort” disputes almost like a Harry Potter-esque sorting hat. Some disputes would go to the mediation room, others to the arbitration room, and others to courtrooms for trial. In this conception, ADR serves primarily to support and alleviate traditional legal processes; it exists parallel to litigation.

Second, he identifies a “neoliberal, individualistic, interest-based approach.” This branch originates from the economic theories of the 1980s that emphasized free market capitalism and private bargaining in the absence of governmental or judicial oversight. Mamo ties the “win-win” negotiation strategies promulgated by Professor Roger Fisher (co-author of the celebrated book Getting to Yes) to broader beliefs in value maximization and economic efficiency that dominated the era. In this conception, ADR serves primarily to benefit the individual disputing parties; it exists outside of the legal system.

And third, he identifies an “anti-liberal, communitarian, relationship-based approach.” This branch originates from the belief that community-centered solutions to conflict–in the form of neighborhood justice centers, restorative practices, and victim-centered strategies–can create normatively better outcomes than either law-centered solutions or private-party centered solutions. Mamo traces this view even further back in American history, to early utopian and religious communities in New England, which favored systems of community norms over legal rules. In this conception, ADR serves as a more wholistic, socially conscious alternative to litigation; it exists not to benefit the government or the disputing parties, but the community.

Mamo shows how, today, ADR tries to rely on all three of these three divergent justifications: existing to help the court system, the parties, and society at large. In some ways, the “ADR Movement” rejects legal norms and procedure, preferring party autonomy and individual interests. Parties choose their own , agree to their own set of rules, and essentially determine the manner in which their conflict will be resolved. In other ways, ADR embraces court-centered or community-centered values. If a dispute goes to arbitration, that’s one fewer case for the public courts to handle on the taxpayers’ dime. If a dispute is sent to some sort of restorative practice, that theoretically benefits the broader community.

This article shows the ideological diversity within the so-called “ADR Movement.” If you attend an ADR conference, you’re likely to see Professor Mamo’s article come to life in different corners of the meeting room. You’ll find corporate lawyers drafting mandatory arbitration clauses. You’ll find self-described “peacemakers” and “conflict healers.” You’ll find in-house lawyers designing employee mediation programs to keep disputes private. You’ll find community leaders who privately resolve neighbor disputes. Big Law arbitration partners. Administrators of court-annexed arbitration programs. Hostage negotiators. Divorce mediators. Ombudsmen. All these folks can somehow fit under the “ADR” umbrella, albeit through divergent philosophical justifications.

In some ways, Professor Mamo is perfectly situated to tell this complicated story. First, he’s a trained historian, which allows him to place ADR in its full context. And second, he’s a Clinical Instructor in the Negotiation & Mediation Clinical Program at Harvard Law School, an institution that has had a disproportionate impact on the development of ADR dating back to scholars like Fisher and Sander. (He will join the faculty of Northern Illinois University College of Law next year). Harvard is one of a handful of law schools–including places like Cardozo, Missouri, Ohio State, Oregon, and Pepperdine–that invested heavily in the teaching and study of private dispute resolution in the 1980s and 90s. Sometimes labeled as “alternative” dispute resolution and relegated to “skills” courses in some corners of legal academia, ADR has become absolutely central to the ways in which American law is experienced. Indeed, these institutions were far ahead of the curve in gauging its importance to the curriculum.

ADR’s rise over the past five decades has been remarkable. But Professor Mamo elegantly reminds us that the field’s rise is best understood not necessarily as a unified “movement” and rather as a confluence of aligned interests or even historical accident. ADR contains multitudes.

Cite as: Brian Farkas, Towards a Unified Theory of ADR, JOTWELL (August 10, 2020) (reviewing Andrew B. Mamo, Three Ways of Looking at Dispute Resolution, 54 Wake Forest L. Rev. 1399 (2019), available at SSRN),

Re-Centering Federal Indian Law

Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787 (2019).

What can Federal Indian Law offer public law as a whole? Supreme Court justices have famously dismissed Indian Law cases as “chickenshit” and “pee wee” cases,1 and scholars have worked for generations to justify the meager recognition of tribal sovereign interests within public law. Maggie Blackhawk’s wonderfully generative Federal Indian Law as Paradigm, however, convincingly argues that Indian law, far from an idiosyncratic backwater, is central to the history of public law in the United States and can provide valuable lessons for framing its future.

First, Blackhawk masterfully synthesizes the work of many scholars (including her own work on the Petitions Clause) to show the role federal Indian affairs has played in the history of government power. Indian affairs were central for the founding generation, figuring prominently in the debates over the Constitution and the early work of Congress and the Executive Branch. Concerns about foreign interference with tribal diplomacy, for example, inspired the first understanding that the Senate’s advice and consent role with respect to treaties included only approval after the fact rather than participation in negotiations.

Indian affairs also shaped many of important early contests between the federal government and the states. Fletcher v. Peck (1810) was the first case in which the Supreme Court struck down a state statute, and the state and presidential resistance to the Court’s invalidation of Georgia law in Worcester v. Georgia (1832) almost upended the ship of state.  Indian affairs also contributed to the modern form of federal power. The executive branch first exercised extensive administrative powers by the mid-1800s in implementing treaties and Indian affairs statutes, while cases like Johnson v. M’Intosh (1823) and United States v. Rogers (1846) provided early judicial assertions of extraconstitutional national power. For some of the examples in the paper more work is necessary to show that treatment of federal power in Indian affairs actually influenced later public law doctrines and structures. But altogether Blackhawk powerfully makes her case that colonizing tribal nations and lands was not just America’s other original sin, it was and remained a constitutive governmental and judicial proving ground.

The next section of the paper is even more original. Blackhawk argues that understanding the paradigmatic status of federal Indian law can provide an important new frame for understanding and addressing injustice. As many have written, the black-white, slavery-freedom, segregation-integration paradigm of race relations has stymied understanding of racism in America. An equal rights framework, moreover, has limited legal efforts to address it and contributed to a conceptual separation between rights and structure in constitutional law.

Blackhawk argues that a federal Indian law paradigm can address these problems. First, the most egalitarian moves in federal Indian law have always been structural and have always ensured that tribal nations have distinct forms of power rather than simply equal rights. Indeed, well before claims of “reverse discrimination” were used to undermine civil rights, “[n]ational constitutional rights [served] as a tool to further the colonial project against Native peoples.” (P. 1798.) Federal Indian law and policy also reveal a long history of recognition of distinct forms of power that the standard paradigm might condemn as creating unequal rights. Recentering federal Indian law as paradigmatic, Blackhawk argues, might therefore normalize and encourage legal protection for collective rights, such as union organizing, or obligations of consultation and representation, rather than individual remedies.

This is a long, incredibly rich, article, and one could quibble with some of its assertions. For example, although the modern Supreme Court often stands in the way of efforts by Congress and the Executive to recognize tribal power, this has not always been the case, and the Court long played an essential role in preventing state and executive overreach. So federal Indian law provides no more evidence that the congressional and executive branches are better “suited to protect against majority tyranny” than any other field does. (P. 1796.) Second, blanket statements such as “[b]y contrast to other ‘minority’ communities, rights are feared in Indian Country rather than sought,” (P. 1859), elides Blackhawk’s own rejection of a structure-rights dichotomy and overlooks the important role that rights have played for Native people as well. But again, these are quibbles, and do not detract from the contributions of the piece.

In short, Federal Indian Law as Paradigm is a wonderful accomplishment, one that can provide a new basis for understanding the public law grounding of federal Indian law, and the federal Indian law grounding of public law as a whole.

  1. Bob Woodward & Scott Armstrong, The Brethren 359, 58 (1979) (quoting, respectively, Justices Brennan and Harlan).
Cite as: Bethany Berger, Re-Centering Federal Indian Law, JOTWELL (July 24, 2020) (reviewing Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787 (2019)),

Private Debt and Public Violence

At the time that I am writing this Jot, in late May 2020, the unemployment rate has climbed above 14%; COVID-19 has once again exposed persistent racial health disparities, and in the wake of the murders of George Floyd, Ahmaud Arbery, and Breonna Taylor,  communities across the U.S. are rising in protest. Real too is that our country’s small (and largely regressive) provision of economic support, to those whose tentative hold on security was ripped out from under them this Spring, has all but dissolved. Given this searing new reality, one might think that counsel from scholars about the absurdity and cruelty of placing the burden of economic desperation on poor communities themselves would no longer be needed.  Who would think, today, that the very communities of color reeling the most should shoulder the cost of their economic survival? Surely we are thinking more radically and more generously than that. But history does not counsel optimism.  We know that neoliberal inequality functions through a pernicious combination of potent racialized myths and vigorous punitive and extractive legal systems.

So in this jot, written at this particular moment, and as one very small response to all that is unfolding around us, I want to highlight two pieces of scholarship that lay bare the viciousness of one aspect of those neoliberal systems: Tonya Brito’s The Child Support Debt Bubble and Abbye Atkinson’s Rethinking Credit as Social Provision. Both pieces critique social welfare policy that puts the burden of economic security onto the shoulders of those least able to sustain it. Without question, both pieces are exquisitely well done, and if this were normal times, my jot would focus entirely on what these papers argue and their undeniable strengths. And certainly all that is in order, but what I want to focus on, after summary and praise, is the relationship between private debt and public violence.

Brito’s The Child Support Bubble builds on years of qualitative research on the reality of child support collection from poor, predominantly Black men. Brito merges qualitative and quantitative evidence with rich legal knowledge and incisive analysis to easily convince her reader that our systems levy absurd amounts of debt onto the shoulders of poor Black men who will never be able to satisfy that debt. Policies that charge exorbitant interest rates and refuse to lower child support amounts, even when fathers are incarcerated, lead to an absurd and inescapable debt. This leads—much like criminal system debt—to constant involvement of punitive agencies in the lives of these men. It leads also to the further privatization of social welfare support in the form of rules that transfer child support payments not to the mothers of these men’s children but to the government agencies that provide meager amounts of welfare support. In the final section Brito runs a simulation, marshalling the numbers and rules to convince us that the whole thing is rigged to make sure that these fathers will never, ever escape. Brito’s melding of story, legal analysis, structural unpacking and quantitative data leaves her reader convinced that our child support system is nothing more than a trap—both for the poor fathers who will never escape the debt and for the poor mothers and children who will never get the economic support they need. And not only is it a trap, but it is a distraction, one that “obscure[s] the fact that our social welfare system does not sufficiently meet the needs of poor families.” (P. 987.)

Atkinson’s Rethinking Credit as Social Provision, reveals another false and distracting trap. Like the very best of critical scholarship, Atkinson makes visible that which is somehow both totally obvious and somehow hidden. She delivers several of these insights. First for credit to work, a borrower has to borrow from her wealthier future self. Second, credit as social welfare policy assumes that the giving of credit will result in that richer future self. Third, the possibility of higher future income depends not really on the mythic bootstrap-pulling capacity of the borrower but instead on the overall strength of the economic opportunities available to that particular borrower. Fourth, viewing credit as social welfare policy is unrealistic “for low-income Americans in light of wage stagnation and persistent insecurity with respect to employment, income and expenses.” (P. 1148.) And finally, when borrowers default the system acts extractively – pulling whatever wealth exists out of poor communities and into the hands of higher income lenders. Race, of course, has everything to do with this. Extractive debt systems target poor African American and Latinex communities. Despite all this, however, policy makers, both on the right and the left, have come to focus on credit as a significant tool in what Atkinson labels a privatized form of social welfare provision, but Atkinson ultimately views that as a harmful distraction. She urges that “it is time for credit to leave the conversation around social provision for low-income Americans . . .  and [to] redirect our collective focus toward the fundamental, persistent, and underlying challenge of ever-increasing economic, and consequently social, inequality.” (P. 1162.)

Ultimately both Brito and Atkinson share a similar message. A social welfare policy that wields myths of individual rights and responsibilities to mask the ways in which structural racism limits opportunity; a social welfare policy that pulls families apart; a social welfare policy that has more to do with punishment than support, and a social welfare policy that maintains and strengthens inequality by pulling wealth out of those communities – is no social welfare policy at all. We need instead, as both counsel, social welfare policy that directly addresses economic inequality. But we need to remember this is not just about ineffective social welfare policy. It is about racial subordination, maintained by violence. How? Because when racialized myths and distraction fail to maintain inequality, neoliberalism turns to state violence. To see this link clearly we only need remember Walter Scott, an African American man killed by a white police officer in April of 2015 in South Carolina. Scott had been jailed multiple times for failure to pay child support. On that day, once again, there was an outstanding warrant for his arrest. We cannot know what was in Scott’s mind as he ran from the officer that day, but he no doubt knew that for him, the best-case scenario was jail and the worst was his death at the hands of the state. And that death can all too easily be traced back to debt.

Wendy Anne Bach, Private Debt and Public Violence, JOTWELL (July 10, 2020) (reviewing Abbye Atkinson, Rethinking Credit as Social Provision, 71 Stan. L. Rev. 2093 (2019) and Tonya Brito, The Child Support Debt Bubble, 9 UC Irvine L. Rev 953 (2019)),

The Internet of Beliefs and Strategies: How NGOs Fight Energy Projects in a Digitally Connected World

David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L. Rev. 327 (2019), available at SSRN.

A burgeoning literature explores the siting challenges, equity issues, and justice concerns associated with energy project development. The important role that NGOs like the Sierra Club,, or the Environmental Defense Fund play in the ensuing conflicts is widely acknowledged, yet the dynamics of NGO mobilization are relatively underexplored.  Professor David Spence’s fine article, Regulation and the New Politics of (Energy) Market Entry, goes a long way toward closing that gap, offering critical insights into NGO strategy, framing, and coordination.

Professor Spence starts by laying out the tensions resulting from the U.S. energy economy’s reliance on private investments to build and maintain the infrastructure necessary to meet the American public’s demand for energy services. These investment decisions are guided by statutes and regulations that reflect the evolving prioritization among three fundamental objectives that make up the so-called energy trilemma: affordability, reliability, and environmental performance. Historically, the first two objectives dominated but, more recently, climate change and other environmental prerogatives have emerged as the driving forces behind much energy investment.

Next, the article surveys the wide range of regulatory barriers to entry facing new energy projects in the form of frequently fragmented licensing regimes across municipal, state, and federal levels of governance. As Professor Spence astutely observes, the horizontally and vertically overlapping nature of this licensing process offers NGOs and other opposing parties a plethora of points for intervention, enabling conflicts to play out along multiple fronts simultaneously. The intensity of conflicts over energy infrastructure siting, the article argues, has been amplified by two related “centrifugal forces”: the rise of digital connectedness and the growing hyperpolarization of our society.  Feeding off each other, both phenomena foster the heightened media presence and emotional intensity of recent conflicts over energy projects, such as the Keystone XL pipeline or the Cape Wind project.

At the heart of Professor Spence’s article lies a data set that comprises more than three hundred energy projects that became the targets of opposition from over four hundred NGOs between 2000 and 2017. It is a testament to the author’s open-minded and balanced thinking that these projects run the technological and environmental gamut, from oil-and-gas exploration to pipelines to LNG terminals, from coal-fired power plants to nuclear reactors to wind and solar installations. The same attention to diversity and detail carries over to the way the article distinguishes among various types of NGOs, from local and state to national and international organizations.

Professor Spence uses his impressive data set to test a variety of hypotheses geared toward better understanding the tactical and issue-related decision-making of NGOs. The findings are compelling and offer novel insights into NGO strategies. The article highlights three specific patterns to support its thesis that polarization and digital interconnectedness have exacerbated the frequency and intensity of energy project siting conflicts in the twenty-first century.

First, mass mobilization around risk-based arguments emerges as the default strategy for NGO opposition to energy project development. Claims about the economic or environmental justice impacts of projects, for example, were far less likely to be part of NGO messaging and strategy. Professor Spence persuasively argues that risk-based anchoring of NGO campaigns is a likely product of the ease of instantaneous communication to a large audience facilitated by our growing digital interconnectedness.

The second pattern observed in the data cautions readers to take NGOs’ risk-based communications with a grain of salt, at least for certain types of projects. In the context of wind farms, smart meters, transmission lines, fracking operations, and nuclear power, many NGOs made claims about associated health risks that are not supported by scientific consensus. Professor Spence points out that such risk-related overrepresentations are significantly more prevalent among local NGOs, compared to their national counterparts.

Both the general propensity of NGOs to mobilize around risk and the tendency to misrepresent health risks observed among some NGOs may, according to Professor Spence, reflect a natural adaptation to today’s “post-truth” politics. In this brave new political landscape, increasingly insulated communities of belief have supplanted societally representative deliberations in search of truth.

The third pattern discernable from the data suggests a growing degree of coordination among NGOs, likely facilitated by our digital connectedness. Tactical coordination would explain the similarity between local and national NGOs’ strategies related to litigation, political action, and issue arguments across a range of projects. There are, as Professor Spence notes, limits to this kind of collaboration among (and even within) NGOs, such as when local chapters of a national NGO oppose clean energy infrastructure because of a project’s local environmental impacts, placing themselves in direct conflict with the parent organization’s general approval of and possible campaign for clean energy projects.

With Regulation and the New Politics of (Energy) Market Entry, David Spence has taken a major step toward helping us understand the strategic decision-making behind NGO opposition to energy infrastructure development.  Given the quality of his data set and his analytical acuity, we can only hope that this piece will be his first of many forays into the world of NGOs. I for one would love to see what insights Professor Spence’s data can offer on the way other factors may influence NGO decision-making and strategy. Does it matter, for example, whether a project is sponsored by local as opposed to national or international firms? What impact, if any, do different models for public participation during the licensing process have? Do macroeconomic shocks, such as the financial crisis, correlate with discernable changes in NGO decision-making and strategy? I could go on but trust that my point is made: more, please!

Cite as: Felix Mormann, The Internet of Beliefs and Strategies: How NGOs Fight Energy Projects in a Digitally Connected World, JOTWELL (June 19, 2020) (reviewing David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L. Rev. 327 (2019), available at SSRN),

Resistance is Not As Useless As We Believed

Daniel Farbman, Resistance Lawyering, 107 Cal. L. Rev. 6 (2019), available at SSRN.

“Resistance is useless,” said the Vogon guard to Ford and Arthur, the intergalactic protagonists of Douglas Adam’s Hitchhiker’s Guide to the Galaxy. That statement turned out to be pretty accurate. Despite Ford’s attempt at resistance through searing critique of the bureaucratic system that the Vogon guard serves, he and Arthur are summarily pushed through the airlock into the starry void.1

Perhaps what Ford needed was the lesson in Daniel Farbman’s Resistance Lawyering:  that resistance staged from within an unjust and illegitimate system, rather than from the outside, can be dramatically effective. Farbman illustrates this through examining resistance to the Fugitive Slave Act of 1850, the sharp edge of a system that shaped both the racial trajectory of this nation and our national yardstick of the meaning of injustice.

Resistance Lawyering introduces to the historical stage a troupe of unknowns: abolitionist lawyers who used the stingy, slanted procedural rules of the Fugitive Slave Act, in combination with political savvy, to “wage a proxy war against the institution of slavery.” Walking the halls of Congress or bringing impact litigation to defeat slavery, approaches that attack the institution from the outside, was not their methodology. Instead, they were direct service lawyers, employing the summary processes of the Act in service of their clients’ freedom and also their abolitionist commitment. These lawyers’ movement politics manifested in a commitment to ensuring that their clients remained free by engaging with and using the system the lawyers opposed.

Celebrating success in these cases would have been in tension with the idea that had significant traction for abolitionists: that the Fugitive Slave Act imposed relentless unremitting injustice on people who had succeeded in fleeing slavery. The historical consensus has embraced that narrative, concluding that the overwhelming majority of people were returned to slavery.  Farbman’s groundbreaking archival research, however, reveals that this direct service, linked with an unwavering commitment to opposing enslavement, was far more effective than previously realized. The article reports that “of 210 cases invoking some form of process under the Law, eighty-one (38.5 percent) of the fugitives ended their cases as free people,” either exonerated, escaped, or having had their freedom purchased.

I like this article (lots) because, in addition to the revelations that archival research brings, and to the light the article sheds on one of the most harrowing decades in this nation’s history, it’s a good read. Farbman introduces us to characters who once drew breath here, at the most important crossroads of their lives–people like Lewis, captured by a slavecatcher, who obtained representation by two abolitionist lawyers: John Joliffe and future president Rutherford B. Hayes. While his lawyers engaged with the Fugitive Slave Act commissioner, Lewis seized an opportunity not contemplated by the Act:

“While the room (including the lawyers on both sides) was thus distracted, Lewis slipped his chair back a little bit to make space for himself. Noticing that nobody took note of him moving his chair, he did it again until he was behind the marshal and almost in among the crowd. Still no one noticed his movements, so he quietly stood up and stepped backwards. An ally in the crowd gave him a nudge of encouragement and someone put a hat on his head. Then, while [Commissioner] Carpenter droned on, Lewis quietly walked right out of the courtroom and mingled among the crowd of free black activists who had gathered to observe the hearing.”

Lewis made it to a safe house and ultimately to Canada and freedom.

The article dubs this approach of working within the system in furtherance of its destruction “resistance lawyering.” Abolitionist lawyers were able to both protect their individual clients and use those cases to further political opposition to slavery. Resistance lawyering worked when the lawyers won, either by overcoming the procedurally-skewed odds and convincing an often-sympathetic judge on the merits, or by delaying the process sufficiently so that the client took the opportunity to escape or abolitionist groups staged a rescue. Even when lawyer lost though, the legalized violence of the return of a client to enslavement, and the inflicted horrors of legalized retaliation, laid before the public, furthered the abolitionist crusade against the law. This tactic of delay and transparency frustrated the summary process in the Fugitive Slave Act that was intended to facilitate rapid return of people who had made it to the North, with as little publicity as possible.

So what does this have to do with immigration? (After all, I’m an immigration editor for JOTWELL.) The article singles out immigration law as one area in which resistance lawyering has taken root. The United States has over the past few decades constructed a grand apparatus of immigration enforcement that many advocates believe encroaches on once sacrosanct principles of immigration law, like asylum law and family unity. The development of these institutions—what Eisha Jain has called the enforcement pyramid—results in mass deportation and detention but also play out among legal, social, and racial lines when enforcement manifests as surveillance and social control of communities of color. Arrest, deportation and detention rates have soared as have rates of conviction for immigration crimes. Procedural shortcuts to expelling noncitizens using administrative forms of deportation now leapfrog court proceedings as easily as turnstile jumping.

The lesson that Resistance Lawyering brings to the present is that daily direct advocacy linked to movement ideology has been effective in resisting institutionalized injustice. The article points to immigration law as one of several areas where resistance lawyering has either taken root or could. Stephen Manning and I have written before about massive collaborative resistance to family detention. That resistance effort relies on the accumulation of daily direct service actions yoked to the larger goal of frustrating, opposing, and ending family detention itself. Ingrid Eagly, Steven Shafer, and Janna Whalley have documented the role that immigration courts (and advocates) have played in reducing deportation and detention by reversing half of the negative credible fear decisions of asylum officers and systematically lowering the bond amount set by detention officers.

For observers of legal transformation, Resistance Lawyering holds another lesson. As commentators, scholars, and analysts, we often train our binoculars on impact litigation making waves in the Supreme Court, track the freefall of comprehensive immigration reform, or obsess over high-level agency policy and pronouncements. Resistance Lawyering teaches us that when we overlook the integration of direct service with political goalposts, we may be missing the game.

  1. Spoiler alert: contrary to the laws of physics, the book does not end there.
Cite as: Juliet Stumpf, Resistance is Not As Useless As We Believed, JOTWELL (June 12, 2020) (reviewing Daniel Farbman, Resistance Lawyering, 107 Cal. L. Rev. 6 (2019), available at SSRN),

Long-Term Residence as Evidence of De Facto Membership

Shoba Sivaprasad Wadhia, Americans In Waiting: Finding Solutions for Long Term Residents, 46 Notre Dame J. Leg. 29 (2019).

In 2018 the Pew Research Center reported that approximately two-thirds of all unauthorized migrant adults in the United States have lived here for more than ten years. The average length of residence is fifteen years. The unauthorized migrant population has become a more settled population rather than a temporary population and mass deportation is politically impossible. In light of these realities it is critically important to seriously explore a pathway to lawful immigration status and/or citizenship for this population. Wadhia’s recent article in the Notre Dame Journal of Legislation argues that long-term residence should be a basis for access to regularizing immigration status in the United States. This argument is rooted in the historical use of long-term residence as the basis for a variety of forms of relief in immigration law.

Americans in Waiting: Finding Solutions for Long Term Residents offers a detailed overview of the role that long-term residence has played in the past, the role that it currently plays, and the role that it could play to address the immigration status of the almost 11 million unauthorized migrants in the United States. Long-term residence in the United States has been recognized as a mitigating factor in deportation cases since 1891 when Congress authorized the deportation of individuals who became a public charge within one year of arrival. The one-year statute of limitations was later extended to five years and this approach to deportation grounds was continued in 1917 when crime-based deportation grounds were adopted.

As historian Mae Ngai notes in the classic text Impossible Subjects: Illegal Aliens and The Making of Modern America “it seemed unconscionable to expel immigrants after they had settled in the country and had begun to assimilate.” 1

As Wadhia explains with the words of Ngai, “they settle, raise families and acquire property–in other words, they become part of the nation’s economic and social fabric.” (P. 30.) Thus, deportation was not appropriate for long-term residents regardless of their immigration status or their actions within the country.

Wadhia’s article provides an incredibly useful overview of the various legal tools that have been used historically, and today, to provide relief to long-term resident non-citizens. The article begins with registry and ends with an order of supervision. Each tool offers a different type of relief, but each is available based on the non-citizens’ long-term residence in the United States. The additional tools addressed are the pathway to citizenship created in the 1986 Immigration Reform and Control Act, suspension of deportation, cancellation of removal, the 1997 Nicaraguan Adjustment and Central American Relief Act, temporary protected status, general deferred action, and the 2012 Deferred Action for Childhood Arrivals program. These tools vary in whether or not the recipients obtain lawful permanent residence status, permission to reside in the United States temporarily, or a promise not to deport for a specified period of time along with work authorization.

The political challenges which the United States of America is currently facing regarding the fate of approximately 11 million unauthorized migrants are not new. Long-term residence has historically been a basis for viewing individuals as members of our national community and providing a pathway to lawful immigration status. The American polity recognized presence and the resulting connections as paths to membership. Even though this approach to membership has not been applied equally to all immigrant groups, it is a principle that has been operationalized in our legal system. The political reality is that almost 11 million individuals are not going to be deported from the United States en masse. Therefore, it is important to discuss options for recognizing the de facto membership of this established population rather than allowing them to languish with uncertainty, limited employment options, and limited opportunities for social and political engagement. This article and Wadhia’s important book, Banned: Immigration Enforcement in the Time of Trump (2019), provide important insights on the role and use of discretion in responding to this challenge. Ultimately a legislative response is necessary to provide unauthorized migrants with durable solutions, but Wadhia outlines a wide range of statutory options that demonstrate that long-term residence is a compelling basis for providing a durable solution.

  1. Mae M. Ngai, Impossible Subjects: Illegal Aliens And The Making Of Modern America 59 (2004).
Cite as: Angela Banks, Long-Term Residence as Evidence of De Facto Membership, JOTWELL (May 21, 2020) (reviewing Shoba Sivaprasad Wadhia, Americans In Waiting: Finding Solutions for Long Term Residents, 46 Notre Dame J. Leg. 29 (2019)),

Wrongful Gains from Data Breaches

Bernard Chao, Privacy Losses as Wrongful Gains, (forthcoming), available at SSRN.

Here’s the problem: data breaches are on the rise, but they may not cause provable losses. This gap exists because traditional legal theories do not adequately protect the privacy interests at stake. Should the law have a method for identifying and capturing wrongful gain from those breaches? If so, should private plaintiffs be able to strip such gains in order to undo unjust enrichment and deter opportunism? Bernard Chao articulates why the law of unjust enrichment and restitution present a viable pathway for plaintiffs to hold data breachers accountable by disgorging gains earned from the breach. As Chao’s article shows, the law of unjust enrichment will provide both a basis for a more viable cause of action and a preferred remedy. The preferred remedy is disgorgement of profits.

Chao effectively shows the need for this paper as well as the justification for the lure of restitution. The lack of familiarity with and misconceptions about this body of law make Chao’s task a difficult one. Redesigning the solution requires an appreciation of law that is beyond the working knowledge of countless law professors, litigators, and judges. Scholars bemoan data breach laws as insufficient. Some scholars and judges see data breach problems as governed by common doctrinal boxes such as tort, privacy, and contract law, and assume one or more of those boxes forecloses any ability to pursue unjust enrichment paths.  This limited conception needs to change. Unjust enrichment and restitution law is equally applicable, and ultimately, more advantageous as a pathway to recovery. Restitution has the ability to address the wrong, and shape an ideal remedy that overcomes otherwise insurmountable obstacles for the victims of data breach. It is not without limits. Once raised properly, judges and juries can effectively fashion the relief to avoid unjust enrichment. Chao’s work will go far in achieving this critical repositioning of the law of restitution.

Existing scholarship suggests broadening conceptions of privacy harms. Rethinking what constitutes harms adds value to the scholarly dialogue. But, as Chao demonstrates, those theories will continue to encounter obstacles of proof given the elements of such causes of action. It is true that judicial interpretations of harm are sometimes restricted unnecessarily to financial losses. Incorporating intangible harms is a step in the right direction, but it does not solve all of the possible proof problems. Unjust enrichment law avoids this roadblock by removing the focus from compensating for plaintiff’s losses to preventing the wrongdoer’s unjust gains made as a result of the data breach.

The first part of Chao’s article describes typical privacy losses and how establishing the proof of those losses will be the downfall of most plaintiffs. Both the law of contract and tort pose barriers to recovery for victims: The goals of such causes of action have traditionally been to compensate victims for loss. As he wisely notes, these barriers have no real connection to the underlying merits of the privacy victims’ allegations of wrongdoing. Conventional bodies of law view plaintiffs’ intangible or hard-to-prove damages as not cognizable. If an individual can’t sell her own data, how can she prove that misuse of that data has caused her to sustain a financial loss? Further, the fact that she has not sold her own data shows that she values it above the market price; thus  demonstrating that a market-price measure of damages would also be inadequate. This is the problem the classic doctrines of compensatory remedies pose for plaintiffs.

Further, Chao addresses the obstacle of constitutional standing as it relates to plaintiff’s need to show actual injury. He usefully explores Clapper v. Amnesty International, and Spokeo, Inc. v. Robins. Chao builds on the critiques raised by other scholars such as Felix Wu who criticize standing doctrine’s current strictures. As Chao notes, standing requirements continue to pose significant hurdles for plaintiffs. Chao then suggests the law of unjust enrichment and restitution as the best solution to all these problems. Gain-based theories add a wrinkle to standing jurisprudence, but unjust enrichment claims meet standing strictures, as the Spokeo amicus brief filed by restitution and remedies scholars demonstrated.

Instead of focusing on plaintiff’s harm, unjust enrichment keys to defendant’s wrongful gain. Chao asserts that privacy scholars have ignored unjust enrichment and forgotten restitution remedies. According to Chao, Daniel Solove and Danielle Keats Citron’s important contribution on data breach harms only notes unjust enrichment in passing as one possible way to address the injury. Unfortunately, they are not alone. Lawyers and courts, too, fail to treat restitution seriously. As Chao explains, the law of unjust enrichment and restitution disappeared from the American legal mindset. Doug Laycock documented this lamentable absence from our collective imaginations in his important work: Restoring Restitution to the Canon. Chao is correct that there is much work needed to rebuild this foundation.

It starts with education. Chao’s article offers definitions to assist readers with both the underlying theories of restitution as well as its remedies including disgorgement. He also explores exactly how the law of restitution applies to privacy breaches, and how it overcomes many of the doctrinal hurdles found in tort, contract, and constitutional law. The incredible work of the American Law Institute’s Restatement (Third) of Restitution and Unjust Enrichment (2011) is another amazing resource with over 1,400 pages of applications and related commentary. American law schools should offer courses in restitution again. Andrew Kull, the Reporter for the Restatement, and Ward Farnsworth authored a wonderful restitution casebook in the hopes that if you build it, they will come. I was lucky enough to teach this material in an advanced course at the University of Florida Levin College of Law. My students frequently wondered why they hadn’t studied any of the restitution cases before. They appreciated the variety of scenarios that could raise unjust enrichment, and the ways that the law of unjust enrichment and its remedies could offer relief where other bodies of law failed. The remedial power of restitution’s disgorgement and its constructive trust have undeniable appeal. We also spent much time discussing viable defenses to restitution claims and remedies. The law of unjust enrichment contains its own doctrinal hurdles, and company defendants will raise a host of defenses including efforts to offset profits with those it had every right to make. Courts are capable of balancing the interests of justice with doctrines of limitation such as attribution. But unjust enrichment will go far to open more access to claims and remedies than more traditional claims covering data breaches.

Until more are able to offer courses in restitution, we are fortunate to have thoughtful articles like Bernard Chao’s that conduct inquiries in the forgotten corners of the law. Restitution may not be a panacea, but restitution has more than enough to offer to solve many thorny problems raised by privacy and data breaches. If a company improperly uses a victim’s data and profits from that wrongful use, why shouldn’t the law honor a claim to disgorge that unjust gain? Chao concludes that the law should, and I agree.

Cite as: Caprice Roberts, Wrongful Gains from Data Breaches, JOTWELL (April 21, 2020) (reviewing Bernard Chao, Privacy Losses as Wrongful Gains, (forthcoming), available at SSRN),

Watch This Space: AI at the Border

Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8 Cambridge Int’l L. J. 305 (2019).

As scholars of immigration law have been busy digesting the firehose of law and policy changes shooting out of the Trump administration, the use of new technologies at the border has been proliferating. Petra Molnar’s new article, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, reminds us that we must begin to pay closer attention to these developments and how they are deployed and regulated. Building on her excellent report, Bots at the Gate, the article provides a timely and useful roadmap of the relevant technologies and their very real risks. Though in the end Molnar is more sanguine than I about the potential of human rights law to mediate these risks, she rings a crucially important warning bell that we would all do well to keep an ear out for over the roar of the firehose.

The article begins, as it should, with a basic description of the “class of technologies that assist or replace the judgment of human decision-makers.” Automated decision-making has the potential to impact adjudication processes and outcomes by the full range of immigration actors, from border patrol to immigration courts. But what technologies are contained within this category? Molnar lists four: artificial intelligence, machine learning, automated decision systems, and predictive analytics, describing them as technologies that can be taught and can learn. Along with the description, she raises the key concern about the opacity of how exactly these decisions are made. As Frank Pasquale and others have asked, what is in that algorithm? Bias, perhaps? Molnar makes the important connection between the literature that critically examines automated decision-making and immigration adjudication. She notes that these technologies present the same risks as human decision-makers: accountability, bias, discrimination, error, and transparency, reminding us not to be fooled by the algorithm’s veneer of scientific objectivity.

From this definition, the article identifies four key areas of concern around the use of technologies in migration governance, offering a foundational map that calls for future researchers to engage. The first concern Molnar raises is the privacy breaches arising from data collection, ranging from the monitoring of mobile phone records to analysis of social media to geotagging. She next examines concerns around biometrics and consent in conditions of unequal bargaining power, offering the disturbing example of refugees in Jordan who were required to submit to iris scanning in order to receive their weekly food rations. Third, Molnar describes the use of technology in surveillance, explaining that the militarization of the border through the use of drones, robots, and remote sensors as border control pushes migrants to more dangerous routes that are more likely to lead to death and serious injury. Finally, the article explores automated decision-making, discussing ICE’s bail determination algorithm and “Extreme Vetting Initiative.” Each of these topics is crying out (loud enough to be heard over the firehose) for future research by Molnar and others.

The article concludes with an explanation of why these developments are particularly concerning in the migration management arena. The pace of technological innovation combined with the dearth of transnational regulatory frameworks present a potent recipe for abuse when baked into migration’s “discretionary space of opaque decision-making.” Molnar explicitly links these concerns with the use of migration management as an experimental forum with the use of data collection and tracking by genocidal regimes in Germany and Rwanda. She explains that there are no legally binding international agreements governing the ethical use of AI in migration management; the existing piecemeal guidelines and task forces are insufficient to face the task at hand. In particular, Molnar notes the need for specificity in legal standards to regulate AI in the migration space.

She suggests a human rights framework as a potential solution. Though less optimistic about this proposal given human rights law’s limited protections for administrative decision-making as well as its lack of specificity, I am indebted to Molnar for pushing forward the conversation and certainly agree that “a more rigorous global accountability framework is now paramount.” An alternative route might be to pressure big technology companies with specific standards set by an independent body, but the most important next step is to dive into the project that Molnar has laid out for immigration scholars. As she aptly notes, “the complexity of human migration is not easily reducible to an algorithm.” Those of us with the relevant substantive knowledge must now turn our attention to figuring out how to harness the potential firehose of these new technologies for the benefit of humans on the move, in all of their brilliant complexity.

Cite as: Jaya Ramji-Nogales, Watch This Space: AI at the Border, JOTWELL (March 20, 2020) (reviewing Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8 Cambridge Int’l L. J. 305 (2019)),

The High Cost of Exclusionary Zoning

Robert C Ellickson, Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin, available at SSRN.

An article about the cost of housing may seem a surprising choice as one of the year’s best environmental law articles. But there are good reasons for it: Housing costs in major coastal metro areas in the United States are soaring. Strong evidence suggests that the stringent of land-use regulations is a major contributor to those price increases Some commentators also consider state-level environmental review laws, such as the California Environmental Quality Act, among those stringent land-use regulations – thus implicating environmental law as a cause of the housing crisis. At the same time, transportation is one of the primary contributors to greenhouse gas emissions in the United States, and is the largest single sector now in California. Addressing emissions from transportation requires a reduction in vehicle miles travelled by Americans, which in turn requires densification of the built landscape to facilitate walking, biking and public transit use. But densification may be difficult or impossible in the face of soaring metro housing costs and stringent land-use regulations that obstruct redevelopment.

Ellickson’s piece provides a timely contribution to both of these debates, because it provides something that has been sorely lacking in the debates over how land-use law shapes housing policy and the built form: Data on how the land-use regulatory system actually operates in practice. Up to now, most of the literature (whether economic, planning, or law) that has tackled how land-use regulation operates on the ground has been either speculative, or it has relied on surveys of developers and planners. This is in part because the local nature of land-use regulation in the United States, combined with its sometimes extreme complexity in local jurisdictions, makes data collection expensive and difficult. Surveys attempt to elide this issue by asking for perceptions or knowledge of land-use regulation by actors (planners and developers) who should know much about the topic, but they may not always accurately reflect the realities of land-use regulation on the ground. But if we want to solve the problems of housing cost and greenhouse gas emissions from transportation, we need to have good data on the true nature of land-use regulation is in the United States.

Ellickson’s work is a great first step in this direction.

Ellickson painstakingly collects data on the zoning regulations for a few dozen jurisdictions in three major metro areas: Silicon Valley/San Jose, CA; Austin, TX; and New Haven, CT. Ellickson documents how all of these jurisdictions have significant limits on how much housing can be produced – in large part through the use of single-family zoning (requiring all development in a particular zone to be single-family houses) and minimum lot sizes (the minimum size of land that can be developed for a single-family house). Ellickson shows how some cities in these metro areas lock up almost all of their land through large-lot, single-family zoning, excluding multi-family housing and even relatively affordable single-family houses. These kinds of zoning regulations are antithetical to producing either affordable housing or walkable neighborhoods – they are the epitome of what is called exclusionary zoning. He uses simple summary statistics to emphasize how dramatically exclusionary much of the zoning is.

Ellickson also helpfully provides three additional elements to his data collection. First, he gives deep historical context for how each metro area has developed over time, including changes to the zoning system that he believes have been most impactful. Second, he does some nice comparisons across his metro areas, showing how the Austin, TX area does have relatively more development-friendly zoning, and how the most exclusionary metro area of all is New Haven, CT. Third, Ellickson develops some very basic measures of how stringent zoning might be – the incidence of large-lot zoning and small-lot zoning, and the amount of land available for multifamily housing. This metric is quite useful in that it allows for rapid and high-level assessments of zoning stringency across a range of suburban jurisdictions, although the metrics would be less useful for assessing central-cities, which usually have a much more complicated zoning system.

If I were to have a critique of Ellickson’s excellent piece, it is that he could engage more with the environmental law implications of his work. Ellickson is primarily descriptive rather than normative in the article, but at times he makes observations on the feasibility of development in areas such as hillsides, wetlands, or water supply districts that might be seen as understating the environmental and societal benefits of protecting those lands. For instance, Ellickson notes that large areas of the foothills of Silicon Valley have been protected as open space, though similarly hilly and steep areas have been developed in the East Bay – the Oakland and Berkeley hills. But those areas were subject to a tragic firestorm in 1991, killing 25 people and destroying thousands of homes – a major discussion today in California is whether those kinds of areas should be developed at all, given their vulnerability to increased fire risk in a world subject to climate change.

A more important connection with environmental law, however, is the implications of Ellickson’s work for efforts to densify American cities and metro areas as a response to climate change. Ellickson doesn’t touch on this, but his work highlights the deep challenges that cities and states around the country will face if they seek to decrease automobile use and reduce greenhouse gas emissions from transportation. That is a real contribution of his piece (albeit unstated), and I hope he continues to do more work in this vein (the footnotes promise a follow-on piece with a more historical bent) and considers building connections to environmental law in general, and climate change in particular. And I really hope that others follow Ellickson’s lead in collecting data on land-use regulation on the ground (some of which I have been doing with collaborators). We need a lot more data in this area, given its central importance for housing, environmental law, climate change, and more.

Cite as: Eric Biber, The High Cost of Exclusionary Zoning, JOTWELL (February 26, 2020) (reviewing Robert C Ellickson, Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin, available at SSRN),