Feb 2, 2023 Eli NachmanyLegislation
A couple of decades ago, Oakland Athletics general manager Billy Beane revolutionized baseball. In constructing the Athletics’ roster of players, Beane employed analytics and data to exploit market gaps in the Major League Baseball labor economy—an innovative strategy. It worked. In 2002, Beane’s Athletics won over 63% of their games and easily made the playoffs on a shoestring budget. Michael Lewis’s book Moneyball—which later became a movie—chronicles the 2002 Oakland Athletics season as a triumph of empirical analysis in baseball. But when other teams jumped into the fray, attempting to reorient their rosters entirely through analytics, many found limited success. The key insight to be gleaned from Moneyball is that analytics has a place in roster construction; at the same time, the last twenty years of baseball show that analytics are not everything.
In Testing Textualism’s “Ordinary Meaning”, Professor Tara Leigh Grove resists the empiricists’ takeover of a wholly different sport: interpretation of statutory text. Professor Grove begins her piece by noting that “[s]cholarship on statutory interpretation has taken an empirical turn.” In particular, scholars have employed empirical methods—e.g., surveys—to ascertain “ordinary meaning.” For these commentators, “ordinary meaning” is an empirical fact, “thereby justifying efforts to test textualism.” (Textualism is a theory of statutory interpretation, popularized by Justice Antonin Scalia, by which jurists interpret statutes according to the statutes’ “ordinary meaning.”) But in Professor Grove’s telling, “ordinary meaning” is also a legal concept that raises normative questions about law interpretation.
Amid a rush of empirical scholarship on textualism, Professor Grove takes up the mantle of law. The initial introduction of empirics into the practice of textualism was like Billy Beane’s initial success with the Moneyball-driven Athletics: a revolutionary innovation that changed the way we think about the enterprise of statutory interpretation. But a singular focus on empirical analysis obscures the true nature of the search for ordinary meaning, as Professor Grove ably demonstrates in her excellent Foreword to the George Washington Law Review’s Annual Review of Administrative Law. Without a recognition that “ordinary meaning” is a legal concept, one cannot properly ascertain what a law’s “ordinary meaning” actually is.
Professor Grove’s piece begins by explaining what she means when stating that “ordinary meaning” is a legal concept. In the first section, she contrasts “ordinary” and “technical” meaning. For example, although the “ordinary meaning” of the term “standing” to a lay reader might be the opposite of “sitting,” a well-trained lawyer will recognize that the term refers “to one requirement for launching a suit in federal court.” In some cases, courts will take the words of a statute in their ordinary sense; in others, they will read words in their technical sense. To make this determination, a court must “address certain legal questions,” including (1) which sources are relevant to determining the meaning of the text and (2) how the structure of the surrounding statute informs the inquiry.
Here, Professor Grove allows that the search for ordinary meaning has an empirical component. Ignoring this reality would be like signing a free agent baseball player without even glancing at his prior statistics. But as Professor Grove explains, “when legal disputes arise, a good deal of the search for ‘ordinary meaning’ will depend on legal considerations.” For this reason, textualists “adopt legal rules to choose which ordinary meaning is preferable,” with many prominent scholars and jurists emphasizing “the understanding of the objectively reasonable person.” Professor Grove notes the divides within the textualist movement about the content of these legal rules (a subject she has explored in other scholarship). Notwithstanding these divides, Professor Grove points out that textualists generally all treat “ordinary meaning” as a legal, normative—not empirical—inquiry.
Part II of Professor Grove’s piece lays out how some scholars have called this approach into question. These scholars’ method of determining “ordinary meaning” is to “identify empirically the use of a term or phrase that is the most common or popular.” One way to accomplish this task is a survey of the broader public. Professor Grove contends that such reliance on empirical methods is misguided for at least two reasons.
First, the “[s]cholarship that relies on survey methods appears to assume that the ‘ordinary meaning’ of a statutory provision depends on the views of the general public.” But when it comes to highly technical statutes that are aimed at federal agencies and regulated parties, that assumption may not hold true. Rather, Professor Grove submits that when one treats “ordinary meaning” as a legal concept, “the hypothetical reasonable reader can be adjusted to comport with the statute at issue.”
Second, the shift to empiricism risks conflating the modern era with the relevant interpretive timeframe. As Professor Grove asks: “how can one determine by surveying the public in 2022 the meaning of a statute enacted in, say, 1871, 1920, or 1964?” The nature of empirical work introduces what Professor Grove calls a “temporal complication” into the method’s workability when searching for “ordinary meaning.”
In Part III, Professor Grove notes the implications of her thesis. To start, textualists have some serious disputes to resolve about which legal tools should be used to discern ordinary meaning. Moreover, “[i]f ordinary meaning is a legal concept,” jurists may need to be more cautious when using “homey examples” (like Justice Scalia’s analogy of “using a cane” to “using a firearm” in his Smith v. United States dissent)—a frequent practice. Furthermore, Professor Grove acknowledges that her work raises some questions about “fair notice”—“itself a legal concept,” as she points out.
Without question, the empiricist turn in the statutory interpretation scholarship has deepened our understanding of how to ascertain “ordinary meaning.” Professor Grove merely warns against overreliance on empiricism in statutory interpretation, just as any modern baseball executive would caution against an overreliance on analytics in building a baseball roster. In describing “ordinary meaning” as a legal concept, Professor Grove refocuses statutory interpretation on the legal and normative issues it necessarily raises. Her piece is worth a read.
Dec 15, 2022 Jill FamilyImmigration
An immigration lawyer’s work is rarely easy. The outcomes are high stakes, and the statutes are complex and harsh. The law is unstable because immigration law relies heavily on shifting agency memos. Backlogs and case completion times seem only to multiply. Clients understandably are on edge, and lawyers try to help them comprehend a maddening system. Immigration law is a challenging practice area, no matter who occupies the White House. During the Trump administration, however, the executive branch made things especially difficult as it focused its power on grinding the system to a halt.
In the midst of the Trump administration, asylum lawyers participated in a survey administered by Professors Lindsay Harris and Hillary Mellinger. Harris and Mellinger’s main finding is high levels of burnout and secondary traumatic stress among the asylum attorneys who responded to the survey. These attorneys scored higher, meaning more burnout, than social workers, hospital doctors, nurses, prison wardens, and immigration judges. In Asylum Attorney Burnout and Secondary Trauma, Harris and Mellinger report their methods and findings, and make recommendations for alleviating the status quo.
Harris and Mellinger used two established tools. They administered the Copenhagen Burnout Inventory and the Secondary Traumatic Stress Scale to survey participants. Additionally, they asked their own demographic questions and a free response question (“Is there anything else you would like to share about the challenges of your job as an immigration/asylum attorney?”). Since Harris and Mellinger’s study relied on self-selected, volunteer participants—and is not based on a random sample—it shares the same potential for selection bias as any similar survey. The authors are careful to remind us that their results reflect the responses of those who participated and cannot be generalized to all asylum attorneys. Nevertheless, over 700 respondents to the survey were included in the authors’ analysis, which signals that these asylum lawyers were struggling and is an indication that others might be struggling as well.
The mean personal burnout score for the asylum lawyers in the survey was 65.12. The closer the score is to 100, the higher the level of burnout. Personal burnout measures physical and psychological fatigue and exhaustion. For social workers, it was 38.8 and for prison wardens, it was 33 (in previous applications of the same survey not conducted by Harris and Mellinger). The mean work burnout score for the asylum attorneys was 63.6, which is higher than social workers (35.8) and prison wardens (32.6). Work burnout measures physical and psychological fatigue and exhaustion as related to work. The mean client burnout score was 44.75, which also is higher than other groups, but not as dramatically. Client burnout measures physical and psychological fatigue and exhaustion as related to work with clients.
The mean secondary traumatic stress score for the asylum attorneys was 2.95. The closer the score is to 5, the higher the level of secondary traumatic stress. The stress scale asks questions about intrusive thoughts (e.g., thinking about clients outside of work involuntarily), avoidance (i.e., procrastination), and arousal (e.g., being short-tempered).
In addition to discovering burnout and stress scores, Harris and Mellinger collected demographic data. The respondents’ self-reports indicated that they are overwhelming female and white. The authors’ regression findings show that female respondents were associated with higher levels of burnout and stress. Regarding race, the authors’ findings are uncertain, given the small number of respondents of color. However, the authors found that of the survey participants of color, there were higher levels of burnout. The authors recommend further research here. The authors also found that solo practitioners were associated with higher levels of burnout and stress, and that having support staff and lower caseloads are associated with lower levels of burnout and stress. There are also findings in the article related to age, hours worked, geographic location of practice, and timing of survey completion (pre or post-pandemic).
As Harris and Mellinger explain, asylum practice is difficult because it inherently involves trauma. Lawyers must shepherd trauma victims through a bureaucratic system that requires asylum applicants to retell their trauma multiple times. There is pressure to relate to trauma perfectly. Because asylum applications usually are not well documented, due to the nature of the claim—the applicant usually was on the run to seek safety—the law tells adjudicators to base their decision on the applicant’s credibility. Adjudicators make credibility determinations based on the consistency of the applicant’s retelling (even if research shows that this is difficult for trauma victims). Lawyers are exposed multiple times to each client’s trauma. This exposure occurs within a system that is stingy with success. Lawyers are constantly pushing the boulder up the hill, fighting to help their clients in a system poised to say no. The system is designed to make pursuit of a case difficult, seems never to work as it should, and, at times, views immigration lawyers as distasteful because they advocate for their clients.
The Trump administration introduced new elements that made representing asylum applicants even more challenging. For example, the Trump administration restricted access to asylum adjudication by forcing asylum applicants to remain in dangerous conditions in Mexico until their hearing date. Additionally, the Trump administration used its power over the immigration agencies to change agency interpretations of asylum law to narrow its availability. Due to these efforts, Harris and Mellinger explain that asylum attorneys not only represent clients but also must take “regular action to try to protect the very institution of asylum.”
The authors present suggestions for improvement. Recognizing that asylum applicants with legal representation have a higher chance for success, the authors make their case that the fairness of the system depends on keeping asylum attorneys practicing and healthy. The authors not only recommend tools to help attorneys exist within the system, but also recommend a major change to the system itself.
For attorneys, the authors argue that self-care and “responsible trauma stewardship” is ethically required. According to the authors, law schools must teach this and provide future lawyers with the tools necessary to be attuned to mental health. Employers must continue these educational efforts, as well as experiment with reducing and diversifying caseloads and providing access to mental health counseling. As far as systemic change, the authors recommend the creation of a more independent adjudication system. The authors would move immigration adjudicators out from under the political control of the Executive Branch.
The authors recognize that their work is the beginning of a conversation and that their research does not answer all questions about the mental well-being of asylum attorneys. Because this study is the first of its kind, it does not measure whether attorneys were worse off under the Trump administration. It does, however, provide us with information about how these 700 asylum attorneys fared during the Trump administration, and the attorneys are not “alright.” The responses to the survey’s free-form question included this one:
I have decided to quit law altogether. It’s impossible to deal with the financial crush of serving a low-income population AND cope with the secondary trauma. I’ve lost my appetite for the law altogether after this shit show area of law. I have no faith in justice or the law anymore.
Harris and Mellinger deserve kudos for identifying a problem and starting the conversation on how to turn things around.
Nov 21, 2022 Marco JimenezRemedies
In a recent essay, Preliminary Damages, Professor Gideon Parchomovsky and Justice Alex Stein have not only come up with a creative way to help indigent and/or poorly-financed plaintiffs finance their lawsuits against intransigent and deep-pocketed defendants, but in the process, they have plugged an important philosophical gap in the remedies literature by proposing the novel remedy of “preliminary damages,” a legal remedy mirroring its equitable counterpart “preliminary injunctions.” There is a lot in this essay that should be of particular interest to Remedies scholars. This Jot cannot do justice to their piece in so short a space, but I hope to offer the reader at least a small taste of this delicious article, which may entice some readers to sit down and enjoy the full course.
In short, their argument is as follows: it is a mere historical accident that courts of equity, whose primary form of relief was the injunction, and courts of law, whose primary form of relief was money damages, grew up independently. However, as these two courts have long since been merged in most states, there is no good reason for a court today to offer one type of remedy (i.e., preliminary injunctions) that happens to have developed in a court of equity while failing to offer its legal counterpart (i.e., preliminary damages). Or, as the authors ask in their article, “If courts can award plaintiffs preliminary injunctions before the conclusion of a trial, why can’t they award preliminary damages? Or, contrariwise, if no damages can be awarded until liability is found, how is it that preliminary injunctions can be granted?” (P. 242.) The answer, to be sure, is purely historical, and by bringing this new form of damages to the attention of judges and scholars, they hope to not only correct this historical anomaly, but to make it easier for indigent plaintiffs to overcome the sometimes nefarious tactics of sophisticated defendants whose deep pockets, intransigence, and policy of “deny, delay, defend,” (P. 256) rather than the strength of their defense, keeps many legal wrongs from being righted by our courts.
Another strength of their article is that, rather than confining their proposal to the purely theoretical, they offer several real-world examples where courts have, in fact, awarded something akin to preliminary damages, as with interim payments for personal injuries for tort victims in the United Kingdom (P. 243) or preliminary money awards in divorce cases in the United States. (P. 244.) Although these examples admittedly make up a small portion of a court’s remedial offerings, they at least illustrate that preliminary damages are possible, and that judges ought to at least consider awarding them in appropriate circumstances.
Which brings us to the following question: what, exactly, are the circumstances in which an indigent or poorly financed plaintiff should get preliminary damages? According to the authors, preliminary damages should be awarded to help poor plaintiffs finance legitimate lawsuits against much better funded defendants. Preliminary damages should be awarded whenever the plaintiff is able to show (1) likelihood of success on the merits, (2) irreparable harm (if such damages are denied), (3) a balance of equities tipping in their favor, and (4) that such an award is consistent with the public interest. (P. 262.) Remedies scholars will immediately recognize that these are the same four factors that the Supreme Court requires a plaintiff to prove to obtain a preliminary injunction, but one wonders whether preliminary damages aren’t sufficiently different from preliminary injunctions so as to justify their own test.
For instance, one of the risks courts will face should they award preliminary damages to indigent plaintiffs is that, as with preliminary injunctions, the court might get it wrong and erroneously grant preliminary damages to a plaintiff that subsequently loses its case on the merits. If plaintiffs only need demonstrate a “likelihood of success on the merits,” or a greater than 50% chance of prevailing on their underlying claim against defendant, there will be many false positives (i.e., erroneously awarded preliminary damages). Because the plaintiffs are indigent, those wrongly-awarded preliminary damages will, in all probability, never be repaid to the defendant, even though the court has found the defendant free of liability. An equitable court easily solves this problem by requiring the plaintiff to post an injunction bond making it liable for any irreparable damages caused to defendants via a court’s erroneous grant. However, the authors do not require such a bond in cases of preliminary damages and, in any case, requiring one would prevent many indigent plaintiffs from bringing their suits in the first place, which would defeat the goal of the authors’ proposal. Similarly, at another point, the authors “propose that preliminary damages be capped at forty percent of the total damages sought by the plaintiff,” (P. 267) but this number seems arbitrary and is nowhere supported in their otherwise excellent essay. Finally, the authors are primarily concerned with, and therefore seem to confine their proposal to, indigent plaintiffs seeking preliminary damages, but the authors’ own theoretical justification for preliminary damages suggests that these damages should be available whenever awarding them makes sense (i.e., wherever doing so could prevent irreparable harm to the plaintiff).
But these are minor quibbles. Professor Parchomovsky and Justice Stein have made an important contribution to the literature that should be of interest not only to Remedies scholars, but to judges and litigants alike. I will surely find ways of working the contributions of this article into my own Remedies course and cannot recommend their essay highly enough.
Nov 8, 2022 Aila HossNative Peoples Law
Neoshia Roemer,
The Indian Child Welfare Act as Reproductive Justice, 103
Boston U. L. Rev. __ (forthcoming 2023), available at
SSRN.
The abolishment of a fundamental right in the recent Dobbs v. Jackson Women’s Health Organization decision sent a shock through communities across the country, including Indian country. Abortion access specifically, and reproductive health generally, has always been limited for Indigenous people. The Dobbs decision will make it worse.
In her forthcoming article, The Indian Child Welfare Act as Reproductive Justice, Professor Neoshia Roemer considers the impact of Dobbs alongside the potential gutting of the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland. She shrewdly notes that limited access to reproductive healthcare without protections for Tribal rights puts Indian children and Indigenous cultures in jeopardy.
ICWA was passed in 1978 in response to “an alarmingly high percentage of Indian families [] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [] an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”
ICWA provides Tribes sole jurisdiction over Indian child custody proceedings when a child resides in Indian country; is domiciled in Indian country; or is a ward of a Tribal court. Tribes have concurrent jurisdiction, alongside states, in all other instances. In state court proceedings, ICWA provides substantive and procedural safeguards to ensure that Tribes have a voice in proceedings, to prevent the breakup of Indian families, and to ensure placement preferences. These placement preferences include members of the child’s extended family; other members of the Indian child’s Tribe; and other Indian families.
ICWA has increased Tribal participation in Indian child custody proceedings and prompted placements that support Indigenous communities and Tribal sovereignty. ICWA’s progress has been challenged in numerous cases, the most urgent being Brackeen v. Haaland, which is set for Supreme Court oral arguments in November.
In Brackeen, petitioners challenged ICWA’s placement preferences on the basis that they are race-based preferences that violate the Equal Protection Clause, among other arguments. The Fifth Circuit rejected the petitioners’ challenge and the Supreme Court has granted cert. The Brackeen decision will be argued only months after the Dobbs opinion was released. It is this intersection that Professor Roemer explores.
Professor Roemer describes how family regulation, distinct from child welfare, has been used as a tool by the federal government in colonizing Indigenous communities. Examples include Indian boarding schools, Indian adoption programs, and the forced sterilization of Indian women.
She concludes that reproductive rights are inextricably tied to family regulation for Indigenous communities. Protecting reproductive rights means protecting Indigenous families through ICWA. She couldn’t be more right.
The abolishment of abortion care as a constitutional right will make it even harder for Indigenous people to access this care which, in turn, can lead to more pregnancies. Brackeen puts the protection of Indian families in jeopardy. There is a clear thread between Dobbs and Brackeen. The Dobbs decision specifically cited to a federal study regarding the nonexistent “domestic supply of infants” and the role of adoption as a suitable alternative to abortion. How troubling that a case that may increase the “supply of infants” will be heard by the Supreme Court on the heels of Dobbs.
Professor Roemer rightly frames ICWA as an issue of reproductive justice. I hope the Supreme Court agrees.
Nov 4, 2022 Tom SimmonsElder Law
James Toomey,
The Age of Fraud, 60
Harv. J. on Legis. _ (forthcoming, 2023), available at
SSRN.
In The Age of Fraud, James Toomey challenges a heretofore unchallenged assumption: that elderly persons are more vulnerable to scammers than younger adults. We all unthinkingly assume that the elderly are riper for fraud victimhood. In fact, Toomey’s empirical research reveals, young adults are more often the targets of fraud than older adults. Younger adults are also more susceptible to engaging with and ultimately falling victim to fraud. Perhaps all of our assumptions concerning older adult fraud victims were just a bit of ageism. Older folks, it turns out, do a pretty good job protecting themselves from scammers.
Toomey’s study polled two cohorts: one age 65 and older and another age 25 to 35. Toomey notes: “We tend to think of scams and frauds as primarily a problem for older adults—lonely, trusting, and possibly experiencing cognitive decline.” (P. 2.) We also take for granted that the elderly are more attractive targets to scammers since they may be more affluent. Toomey debunks both assumptions and outlines important policy considerations which necessarily follow.
Over the past decade or so, legal reforms on several fronts have singled out fraud against senior citizens as a distinct problem. Elderly fraud victims have been treated as a discrete problem, and concern for them has generated distinct legal responses, such as the SEC’s 2018 safe harbor for reporting suspected fraud targeting older account holders with its Rule 2165. Congress debated the Protecting Seniors from Emergency Scams Act. Numerous state law initiatives have also been implemented, typically imposing stiffer penalties when the scam victim is an older adult (or an individual with a disability). Some jurisdictions have allocated more funding to contend with older adult scam victimization.
All these reforms rest upon the supposition that older Americans are more susceptible to scams than others – that senior scams “represent a discrete social problem” requiring “a discrete legal solution.” (P. 10.) Many reformers claim we still have not gone far enough. But in fact, the claim that seniors are more likely to be financially victimized is wrong. When actual evidence is considered, the qualitative assertion underlying various legislative responses is simply unsupported.
Disrupting conventional wisdom on important matters is what good empirical scholarship does best. Toomey’s study, focusing primarily on COVID-19-related scams with a sampling of some six hundred Americans, is not necessarily conclusive. (He suggests that the public focus on senior scams may have worked to achieve its aim and put the elderly more on guard against scammers.) However, it does strongly suggest that to the extent the criminalization of fraud against older Americans was premised on their enhanced targeting by fraudsters and heightened vulnerabilities of older targets, those assumptions are wrong. And here is where Toomey’s article really gets interesting.
He posits: “It might be that taking advantage of older adults is qualitatively worse as an ethical matter.” (P. 4.) It might be that targeting a senior is morally worse than targeting a young adult. Could the legal reforms be justified on the grounds that targeting senior fraud victims is more morally offensive–qualitatively? This is the justification underpinning hate crimes; not that hate crimes are more common than other crimes but that their moral blameworthiness simply exceeds that of other crimes (a deontological claim which cannot be empirically disproven). It’s worse to victimize an older person because it is more despicable. It’s worse because it is worse. As a result, it demands a greater retributive sanction against the perpetrator.
Alternatively, it could be that some crimes are more blameworthy because they are more harmful (a consequentialist claim which might be susceptible to proof). How could the motivation behind a particular crime (say to target a senior citizen rather than a younger adult) result in more harmful consequences? Theoretically, retirees would have a harder time rebuilding their nest egg from the devastating effects of a successful scam than working-age folks. Retirees might also suffer greater emotional distress as a consequence of being targeted by scammers than younger adults. Older Americans might be too trusting – less resilient, more fragile. And therefore, they might suffer more emotional and financial harm than younger victims.
These stereotypes, however, seem to be leading us right back to the problem of ageism which assumed older victims were more vulnerable than was actually the case. Toomey does not call for a dismantling of the legal reforms associated with financial abuse targeting older individuals. But he does call for a reassessment.
Cite as: Tom Simmons,
Fraud Reconsidered, JOTWELL
(November 4, 2022) (reviewing James Toomey,
The Age of Fraud, 60
Harv. J. on Legis. _ (forthcoming, 2023), available at SSRN),
https://lex.jotwell.com/fraud-reconsidered/.
Nov 1, 2022 Bethany BergerNative Peoples Law
Michael Velchik & Jeffery Zhang,
Restoring Indian Reservation Status: An Empirical Analysis, 40
Yale J. Reg. ___ (forthcoming 2022), available at
SSRN.
In Restoring Indian Reservation Status: An Empirical Analysis, Michael Velchik, and Jeffery Zhang provide some of the most rigorous empirical evidence to date on the economic impact of reservation status. Although I discuss limitations to their data below, the article provides a welcome counterpoint to repeated arguments—to the Supreme Court, Congress, and elsewhere—that affirming reservation boundaries will destroy existing economies.
These assertions gained nationwide attention when the Supreme Court decided McGirt v. Oklahoma. The Court held that Congress had not erased the treaty boundaries of the Muscogee (Creek) Reservation. Lower courts soon applied the decision to hold that the reservations of the Cherokee, Chickasaw, Choctaw, and Seminole Reservations—which occupy the rest of eastern Oklahoma—remained as well. In briefing and oral argument, Oklahoma and its amici insisted that affirming reservation status would be terrible for the safety and economy of the area. I have worked on several reservation boundary cases now, and these kinds of arguments—what Velchik and Zhang call the Falling Sky thesis–are trotted out every time. And for good reason: the Supreme Court allowed current demographics to distort its interpretation of congressional intent in South Dakota v. Yankton Sioux Tribe, and Hagen v. Utah and created an entirely new rule to maintain state jurisdiction over tribal lands within the undiminished Oneida Indian Reservation. (Sherrill v. Oneida Indian Nation of New York.)
The McGirt majority, however, refused to let these “sadly familiar arguments” persuade it to “cast a blind eye” to the injustice of undermining treaty-promised reservations. It also cited the brief I helped write for the National Congress of American Indians, arguing that other non-Indian communities do just fine within reservation boundaries. But, four other Justices were worried that the sky really would fall. In a dissent authored by Chief Justice Roberts, they chided the majority for having “profoundly destabilized the governance of eastern Oklahoma” and creating “significant uncertainty for the State’s continuing authority” over areas “ranging from zoning and taxation to family and environmental law.” Since then, Oklahoma has tried to play on those fears (and on Justice Ginsburg’s replacement by Justice Barrett), filing over 40 certiorari petitions seeking to overturn McGirt.
Velchik and Zhang try to bring facts to bear on the stories litigants and judges tell. They characterize these stories as falling into four camps. First, the aforementioned Falling Sky model argues that reservation status is just bad for local economies. Second, the Economic Stimulus model responds that reservation status may actually benefit local economies. Third, the Uncertainty Shock model (which they somewhat charitably ascribe to the McGirt dissent) asserts that the uncertainty caused by the change will undermine local economies. Finally, what they call the Game Theory model posits that governments will recognize the benefits of cooperation and adjust to protect the economy regardless of formal authority.
Velchik and Zhang use a clever natural experiment to test these models. Looking at Oklahoma and five other areas where reservation status was litigated, they compare trends in GDP and employment in counties affected by the decisions with those in neighboring counties. (The other areas are the Omaha Reservation, whose boundaries were affirmed by Nebraska v. Parker, the Saginaw Chippewa Reservation, whose boundaries were settled by Saginaw Chippewa Indian Tribe v. Granholm, the Puyallup Reservation, whose boundaries were settled by Pub. L. No. 101-41 (1989), the Oneida Indian Reservation, a somewhat more complicated case where Sherrill v. Oneida Indian Nation of New York, undermined the impact of reservation status, and the Yankton Sioux Reservation, whose boundaries were diminished by South Dakota v. Yankton Sioux Tribe ) Although many factors may contribute to economic trends, by comparing both trends before and after the decisions and between the affected county and neighboring counties, they can significantly isolate the impact of the decisions themselves.
This is the headline: their data show no negative economic impact of reservation status. In some instances, employment trends even improved compared to neighboring counties, but the results were not statistically significant. As they say, the results are powerful evidence against the Uncertainty Shock model and tantalizing (but far from conclusive) evidence of the Economic Stimulus model.
Beyond undermining the Uncertainty Shock model, however, their analysis has significant limitations. One involves the time periods it covers. In each case, their analysis stops two years after the final decision regarding reservation status. This means that the data do not necessarily reflect the effect of reservation status itself but rather the effect of the sudden change in perceived status. This is a powerful counter to the Uncertainty Shock thesis, which is based on change alone. It is also some evidence against the extreme forms of the Falling Sky thesis: skies don’t usually take two years to fall.
Without a longer stretch of time, however, it is only weak evidence regarding the general economic effects of reservation status. The first two years after a change in reservation status may reflect expectations and uncertainty by economic actors, but the impact of legal changes caused by reservation status itself might well take longer to appear. The initial period after a decision may also be characterized by heightened efforts by all parties to avoid rocking the bus, providing unwarranted support for the Game Theory thesis. Measuring changes over a longer period, however, might introduce more differences other than the change in reservation status, limiting the value of the authors’ difference-in-difference analysis.
There also are some difficulties in how the authors treat decisions that certain lands lack reservation status. All of the decisions they consider involve cases in which states and local governments acted as though reservations did not exist. Therefore, a formal decision against reservation status—like that in South Dakota v. Yankton Sioux Tribe—is not a significant change in the status quo. Similarly, when the Saginaw Chippewa and Puyallup Tribes entered into settlements affirming parts of their historic reservations and ceding claims to other parts, the impact is generally to increase the area with de facto reservation status, even though earlier decisions suggested a larger area was in play.
Altogether, however, Velchik and Zhang shed important light on the heat of unsupported assertions of reservation status. Federal Indian law litigation far too often turns on such unsupported parades of horribles. May their work be followed by similarly creative and rigorous responses.
Oct 28, 2022 Felix MormannEnergy Law
In February of 2021, winter storm Uri wreaked havoc in Texas. Temperatures that would barely raise an eyebrow in the upper Midwest or Northeast caused two in three Texans to lose power, often for days. Water supply systems and other electricity-dependent essential services collapsed in Austin and elsewhere, some taking weeks to come back online. Hundreds died, and the storm’s disruptive impact on the local economy caused billions of dollars in damages. Texas Governor Greg Abbott and other politicians were quick to blame the state’s solar and wind generators for the widespread blackouts. Closer scrutiny, however, soon revealed that outages at fossil-fuel plants, not their renewable counterparts, were the primary cause of cascading blackouts. In fact, local solar and wind generators performed significantly better throughout Uri than the Lone Star State’s natural gas-fired power plants.
In their excellent new article, Grid Reliability Through Clean Energy, professors Alexandra Klass, Joshua Macey, Shelley Welton, and Hannah Wiseman draw on the Texas experience to debunk the common misconception that grid reliability and clean energy are at odds with one another. On the contrary, the authors argue, “the only way to secure a reliable grid under conditions of climate change is to rapidly engage in a clean-energy transition in the electricity sector.” (P. 978.) After all, global warming and other manifestations of our changing climate increase both the frequency and severity of extreme weather events like winter storm Uri. Sure, grid operators could weatherize coal and natural gas-fired power plants as well as their fuel supply to keep them running longer. But to do so would also increase the power sector’s greenhouse gas emissions, exacerbating reliability threats from climate change.
Why, then, does conventional wisdom still posit clean, low-carbon energy and grid reliability as dueling objectives rather than dual benefits of thoughtful climate and energy policy?
Professors Klass, Macey, Welton, and Wiseman convincingly argue that a series of disconnects, or “silos,” within the energy policy domain forestall a better understanding and alignment of reliability and decarbonization goals. Energy policy, they explain, is “siloed along three separate planes: (1) across environmental and reliability goals; (2) among jurisdictions (federal, regional, state, and sometimes local); and (3) along a public–private continuum of actors.” (P. 979.) For too long, the authors argue, policymakers and scholars have focused overwhelmingly on clean energy policy–with little regard for its interaction, and potential synergies, with reliability policy. Grid Reliability Through Clean Energy offers a suite of substantive and structural recommendations to facilitate better coordination and collaboration among previously siloed entities to craft and implement policies that simultaneously advance decarbonization and reliability objectives.
The authors offer four compelling case studies from across the electricity value chain to corroborate their silo theory and to anchor their policy recommendations. The first case study compares different approaches to valuing and integrating an ever-expanding range of energy resources into the nation’s various power markets. Parts of the country actively discriminate against weather-dependent solar and wind generators, while others afford privileged treatment to legacy coal plants, all in the name of grid reliability. Meanwhile, many regional electricity markets fail to accommodate state and federal clean energy policies. To remedy the resulting tensions, the authors call for rethinking the holy grail of “resource adequacy” to incorporate state policies and “prevent reliability goals from operating at cross purposes with clean energy goals.” (P. 1021.)
Next is the expansion of the nation’s electricity transmission infrastructure–a project of massive proportions that promises enormous reliability benefits while enabling greater development of low-carbon generation. Running the necessary wires, however, requires balancing private and public interests across federal, regional, state, and local levels of governance. The authors do an outstanding job of laying out the multitude of competing interests as well as the governance structures that tend to prevent direly-needed progress, from methodological differences in benefits valuation to jurisdictional conflicts to utility exits. The reader can sense the frustration that prompts the authors to concede that, unlike in the other case studies where silos can be maintained, albeit in a more connected line-up, “in this case, the state, regional, and federal silos must actually be broken down, not accommodated.” (P. 1035.)
The third case study hones in on the North American Electric Reliability Corporation (NERC), the private non-profit corporation tasked with regulating the U.S. grid’s reliability under the supervision of the Federal Energy Regulatory Commission (FERC). Returning to winter storm Uri, the authors offer persuasive evidence that NERC’s failure to turn non-binding recommendations into mandatory regulations exacerbates reliability challenges in Texas and beyond. The authors’ triage suggests that this laissez-faire approach is, at least in part, the product of dominating private utility influence within NERC and its balkanized regional subsidiaries. Accordingly, they prescribe remedies including enhanced public-private coordination as well as a more holistic view of reliability that recognizes solar, wind, and other renewables as potential assets rather than liabilities in keeping the lights on.
Regional Transmission Organizations (RTOs) that manage the grid for two-thirds of the country are at the heart of the final case study. While policymakers and scholars gravitate toward regional governance as the ideal scale for grid management, the authors caution that the mode of said management is at least as important as its scale. A range of examples illustrate the bias toward conventional, fossil resources that dominate among the utilities and transmission companies, who, in turn, dominate the membership and governance of RTOs. In the level-headed analysis that distinguishes the article throughout, the authors emphasize that suboptimal grid management by an RTO may still be better than the management practices observed in regions without RTOs. This is but one of many examples of the authors’ sense of realism that informs their ambitious, yet feasible policy recommendations. Would Congressional action be nice? Sure. In its absence, however, there are a number of existing legal authorities that FERC could use to help overcome RTO resource bias and facilitate broader recognition of clean energy’s reliability benefits.
Whether your scholarly interests lie in energy law, administrative law, climate policy, federalism, or anywhere in between, Grid Reliability Through Clean Energy is a must-read. Professors Klass, Macey, Welton, and Wiseman have each, individually, produced plenty of impactful scholarship on (clean) energy policy. With Grid Reliability Through Clean Energy, they have proven that, in the very best collaborations, the end product is, indeed, greater than the sum of its parts. In fact, I am now thinking of the four as The Beatles of Clean Energy. Like Harrison, Lennon, McCartney, and Starr, each of these professors is a rock star scholar in their own right. But bring the four of them together, and you get something truly special. Here’s hoping that Klass, Macey, Welton, and Wiseman are already working on their next album. We could all use a good soundtrack on the long and winding road to a cleaner, more reliable power grid.
Oct 20, 2022 Angela BanksImmigration
In September of 2021, Haitian migrants, attempting to return to a migrant camp in Del Rio, Texas, were met with U.S. Border Patrol agents on horseback with whips. The Haitian migrants had gone to Mexico to obtain food for their families, as there was insufficient food at the camp. Upon their return, Border Patrol agents attempted to push the Haitian migrants back across the Rio Grande to Mexico. One viral image showed a Border Patrol agent on horseback holding a whip and grabbing a Haitian migrant by the back of his shirt. Kit Johnson’s recent article, Women of Color in Immigration Enforcement, raises interesting questions about whether or not the growing number of women of color in immigration enforcement could positively impact the “use-of-force culture in the federal immigration enforcement context.” (P. 997.)
Johnson’s article introduces new demographic data about immigration enforcement officers that demonstrates that the majority of female immigration enforcement officers are women of color. In light of this new information, Johnson introduces a research agenda to examine the impact and experiences of women of color within immigration law enforcement. While scholars have explored the experience and impact of Latinx immigration enforcement officers, the experience and impact of women of color specifically has not been explored. Now that more granular demographic data is available, women of color can be the focus of analysis.
The article begins with an overview of the functions of three key immigration enforcement offices within the Department of Homeland Security (“DHS”): the Office of Field Operations (“OFO”) within U.S. Customs and Border Protection (“CBP”), U.S. Border Patrol (“USBP”) within CBP, and Enforcement and Removal Operations (“ERO”) within U.S. Immigration and Customs Enforcement (“ICE”). After describing and contextualizing the work of these agencies, Johnson details the legal tools that have led to the diversification of immigration enforcement. Federal legislation, like Title VII of the Civil Rights Act of 1964, Executive Orders, and agency rulemaking have prohibited employment discrimination within the federal government, encouraged increasing the number of Latinx individuals employed by the federal government, and promoted federal employment as a place of “equal opportunity, diversity, and inclusion.” (P. 1008.) Due to Management Directive 715 by the Director of the Federal Sector Programs Office of Federal Operations Equal Employment Opportunity Commission DHS was obligated to “identify barriers to creating a more diverse immigration workforce.” (Id.) This led to efforts to recruit more enforcement officers who are people of color and/or women. (P. 1009.)
Recent data suggests that the DHS efforts have successfully diversified some of the immigration enforcement agencies. For example, 13 percent of ICE officers are women, as are 19.6 percent of CBP officers. Compared to local police departments, where 12.6 percent of officers are women, ICE is in line with national figures and CBP is ahead. (P. 1011.) Yet, U.S. Border Patrol is significantly lower at 5.5 percent female officers. (Id.) The insight offered by Johnson’s essay is that the majority of the women within immigration law enforcement are women of color. For example, 55.1 percent of female CBP officers, 58 percent of female ICE ERO officers, and 54.1 percent of female U.S. Border Patrol officers identify as women of color. (P. 1012.) Johnson also notes that a greater percentage of female immigration enforcement officers identify as Black, Latinx or multi-racial than male officers working for CBP, ICE, and the U.S. Border Patrol. (Id.)
There is little research examining the impact that the diversification of immigration enforcement along the lines of race, ethnicity, and gender has had. Johnson offers a framework to begin this analysis. Applying David Alan Sklansky’s framework for evaluating the effects of diversity within local law enforcement to immigration enforcement, Johnson examines (1) competency effects, (2) community effects, and (3) organizational effects. Competency effects explore the “skills and abilities of the workers.” Community effects examine the implications “for the relationship between the agency and the community it works with.” Organization effects look at the “ways in which employees affect their workplace.” (P. 1013.) Johnson’s essay begins to analyze these factors but acknowledges that additional empirical research is needed to address the organizational effects properly. Additional issues to address in future research would be: Why does the U.S. Border Patrol have such low numbers of women across the law enforcement spectrum? Why does CBP have higher numbers of women within immigration law enforcement and local law enforcement more broadly? Finally, it would be interesting to see how the immigration enforcement figures compare to other federal law enforcement agencies. It is possible that the organizational culture of each of these immigration enforcement agencies provides insights. Yet additional research is necessary to determine how different the agency cultures are, and what if any impact it has on the demographics of the officers.
In light of the images seen by the world in the Fall of 2021, Johnson’s call for increased scholarly attention to the growing number of women of color within immigration enforcement is timely. In addition to the question she identifies for further research, I would add the following: with regard to community effects, what are the strategies and techniques used by female officers that enable them to de-escalate situations successfully? To what extent can this lead to new forms of training that could have organizational effects? Additional organizational effects to explore would be, does an increase in the number of women and/or women of color within an enforcement agency change other aspects of the culture?
Sep 20, 2022 Wendy Anne BachPoverty Law
Abolition is, as we have been well taught, at a minimum, a vision, a process, and a “theory of change.” (P. 867.) It is also crucially about power and resource allocation. Specifically, the transfer of power and resources away from those who have built institutions that reify white supremacy and to Black (and often intersectionally Brown, disabled, poor, Indigenous, Queer) communities subject to that institution’s violence. For academics and policymakers seeking to participate, one among many essential tasks is to attempt to step back and begin to understand how abolitionist praxis envisions change. This question is, at the very least, about who is in charge of change and how change happens. The who is clear. Change is led primarily by those most acutely subject to white supremacy’s violence. As to the how, abolitionists “recognize that the world may not change tomorrow; however, [they] also reject incrementalism that reinforces the status quo and entrenches oppressive cultures.” (P. 890.)
Visioning abolition and understanding the difference between reform proposals that would “reinforce the status quo and entrench oppressive cultures” and those that would be a step toward the vision were at the heart of a recent, groundbreaking symposium. Sponsored by the Columbia Journal of Race and the Law, Strengthened Bonds: Abolishing the Child Welfare System and Reenvisioning Child Well Being, marked the occasion of the twentieth anniversary of Dorothy Roberts’s Shattered Bonds: The Color of Child Welfare, by renaming the child welfare system as the family regulation, family policing or family destruction system (P. 883) and by calling for its abolition. The proceedings and papers are quite astounding and easily the subject of several entries in this particular, celebratory forum. But because I had to choose and because of the importance of understanding the vision, the specifics of abolitionist theories of change, and ways in which well-meaning professionals can get in the way of these goals, I feature a symposium piece that is beautiful, inspiring, and profoundly challenging: Ending the Family Death Penalty and Building a World We Deserve, co-authored by Ashley Albert, Tiheba Bain, Elizabeth Brico, Bishop Maria Dinkins, and Kelis Houston. My purpose here is simply to highlight some of what they share and to strongly encourage you to spend some time reading and reflecting on the article in full.
The authors describe themselves as “directly impacted mothers, community organizations, and allied advocates across the country” who have been working closely together since at least since 2019. They describe their collective process, share their vision, reveal how the family regulation system as a whole, and the Adoption and Safe Families Act (ASFA) in particular, is grounded in and reinforces white supremacy. They call for the abolition of the family regulation system and, crucially, lay down a specific metric by which to evaluate potential steps on the road to abolition.
Before turning to the test for proposed reform, I want to start, as the authors do, not with the problem but with their vision:
We demand a world where the integrity of all families is valued and family ancestry is held sacred. In this world, families are supported and given the resources they need to thrive, and the family death penalty, or termination of parental rights, no longer exists. (P. 869.)
Starting with the vision is important, because visioning challenges us all to “stretch, twist, and wring out all the permutations of possibility and fully embrace the capacity of potential.” (P. 867.) Recognizing that the world may not change tomorrow, though, the authors make clear that, as is the case when talking about abolition and the criminal legal system, particular changes can be either a step toward the goal (a non-reformist or abolitionist reform) or it can be a reformist reform, one that strengthens the very institutional forms that abolition seeks to unroot. To tell the difference in the context of family policing, they offer a four-part test:
- Are the changes that are being proposed reducing funding to the child welfare industrial complex and increasing funds to communities?
- Is the narrative around the policy shift pushing the dominance narrative that the family regulation system is an arbiter of safety?
- Are we supporting changes that decrease the size, power, and scale of the family destruction system?
- Are we supporting a shift in material conditions and the politicization for our people?
(Pp. 891-92.) To see how this might play out in the context of family regulation, the authors focus on ASFA and the destruction of families wrought by that act. Assuming there may be steps towards abolition short of the ultimate goal, they provide examples of what would be an abolitionist v. a reformist reform in this context. On the abolitionist side, they suggest that ending terminations of parental rights (TPR) would be a step toward abolition presumably because it would “decrease the size, power and scale of the family destruction system” and “shift material conditions…for our people.” (P. 892.) In contrast, internal agency reviews of TPR policy fails because it does not reduce funding to the system. (Id.) Instead, it increases it. Moreover, giving the power to conduct reviews to the child welfare agency supports the narrative that the family regulation system is an arbiter of safety and fails to make progress on the goals listed in the last two parts of the test. This all seems straightforward.
Another example though, squarely raises a crucial issue–the ways in which professional interventions that seek to understand a particular person or family’s “problem” and then create a “program” to address that “problem” can be particularly counterproductive. To make this point, the authors highlight the concept of adverse childhood experiences (ACES) and the relationship between ACES and foster care prevention services. There’s no question that putting resources into the hands of agencies associated with the family regulation system to provide prevention services fails the abolitionist reform test. It builds, rather than shrinks, the system and reinforces the narrative that that agency is the arbiter of safety. It also does nothing to directly advance the material or political power of communities most deeply harmed by white supremacy. An advocate for such policy might respond that the concept of ACES and programs genuinely informed by an understanding of ACES have been shown to help particular families. How could this be a problem? To that, the authors have a clear response:
These industries are so faithful to technical surveys like “ACES” that are supposed to address adverse childhood experiences, rather than actually building up Black women and children.They spend more time building out family regulation apparatuses like “prevention models” than advocating for housing, baby bonds, and universal basic incomes for our communities. (P. 894.)
The message to those who would support such an intervention here is clear. If you agree we should move toward their vision, stop diagnosing “problems” and stop “helping” by expanding institutions. Instead, use whatever political power, resources, and/or technical expertise you have to work, in collaboration, toward the transfer of both significant power and significant resources from existing careceral institutions to Black families and communities. The road abolitionists propose is not easy, but I have no doubt it is the only road that will ultimately address the overwhelming violence wrought by carceral systems. We would all do well to heed their words.
Cite as: Wendy Anne Bach,
On Divesting, Investing, and Critically Examining Help: Lessons from a Symposium Centering Abolition, JOTWELL
(September 20, 2022) (reviewing Ashley Albert, Tiheba Bain, Elizabeth Brico, Bishop Maria Dinkins, & Kelis Houston,
Ending the Family Death Penalty and Buildling a World We Deserve, 11
Colum. J. Race & L. 861 (2021)),
https://lex.jotwell.com/on-divesting-investing-and-critically-examining-help-lessons-from-a-symposium-centering-abolition/.
Aug 8, 2022 Eric BiberEnvironmental Law
While climate policy in the U.S. Congress appears stalled, debates about the best approach to advance decarbonization continue at the state level and around the world. A critical choice is between two different philosophies for carbon policy: One option is to pursue some form of pricing on carbon (e.g., cap-and-trade or a carbon tax) and allow the market to advance the best tools to reduce carbon emissions. The other option is to embrace a range of non-market strategies, such as regulation, subsidies, and support for research and development. In making this choice, policymakers must weigh important questions such as the economic cost of a particular policy, whether a policy can even be enacted in the first place, and the effectiveness of a policy in achieving the ultimate goal of reducing carbon emissions.
There have been many electrons spilled in these debates. However, a recent book by two leading scholars in the field—Danny Cullenward, with the climate policy think-tank Carbon Plan and Professor David Victor of UC San Diego—entitled Making Climate Policy Work, provides a thoughtful assessment of this critical tradeoff and comes down on the side of non-market alternatives.
Cullenward and Victor’s critique of carbon markets is both comprehensive and devastating. In their view, carbon markets offer prices for carbon that are too low to meaningfully drive the investment and innovation we need to develop and deploy the technologies required to decarbonize our economies. Additionally, carbon markets are unlikely to produce the high prices needed to drive investment. Setting high prices would require imposing heavy costs on politically powerful incumbent industries and interest groups—all for the benefit of nascent technologies and future generations that are politically weak. Carbon markets cannot provide deep policy integration across multiple economic sectors because each sector’s technological, economic, and political challenges can be so divergent that any market linkage undermines the overall market’s effectiveness. Carbon markets that were touted as ways of integrating climate policy across multiple countries around the world have instead generally failed to sustainably connect across international borders. Moreover, in integrating across jurisdictional borders, markets have all too often relied on approaches such as carbon offsets (in which an emitter pays another actor to reduce their emissions elsewhere) that can be susceptible to fraud and abuse.
Given these flaws, it’s no surprise that the authors characterize most existing carbon markets as “Potemkin” markets that appear to be functioning at reasonable costs–but in fact, most progress in decarbonization (whether it is in reducing carbon emissions or advancing innovation) is driven by regulatory instruments.
Cullenward and Victor’s analysis flows from a relatively simple political model that includes the major actors (such as interest groups) and institutions through which climate policy is established and implemented. To buttress their points, the authors draw on a series of examples, including the European Union’s Emissions Trading System.
The book provides a refreshing counterpoint to the regular invocations of markets as the solution for our climate policy dilemma. Cullenward and Victor have done a remarkable job of summarizing the existing policy literature that has increasingly undermined the case for the dominant role for markets, as well as their own contributions to that literature.
The authors do not call for completely abandoning markets, as they note, markets can be made to work as part of an overall portfolio of climate policy that also includes regulation. For instance, markets can focus on areas where smaller price signals function well. However, the authors make clear that markets will not play the leading role for much of our climate policy in the near future. Given the urgency of the task in front of us for decarbonization, knowing which policies are more effective in the here and now is tremendously important.
