When Regulation Fails?: Public Nuisance Liability as Fallback Option or Policy Plan

Leslie Kendrick, The Perils and Promise of Public Nuisance, _ Yale L. J. _ (forthcoming 2023), available at SSRN.

On its face, there is a certain hypocrisy to the fact that governments permitted private parties to distribute massive amounts of opioids, stood on the sidelines as overuse and misuse created a deadly toll, and, only after the fact, sued for damages through torts like public nuisance. Why is it that after state legislatures fail to prevent public harms, state attorneys general can swoop in and collect big dollars on legal claims for harms done to the public?  And why do companies, through settlements, accede to attorneys generals’ demands?

In her thoughtful article, The Perils and Promise of Public Nuisance, Professor Leslie Kendrick explores public nuisance claims—claims for unreasonable interference with a right common to the general public. Kendrick pays particular attention to public nuisance actions in the opioid litigation. Kendrick identifies three main critiques of the public nuisance doctrine and then proceeds to dismantle each one. To traditionalists, who suggest that the public nuisance tort has extremely narrow contours, Kendrick outlines the robust history and scope of the tort, invoking no less than Blackstone, to show that the ancient tort was not so limited. Kendrick is undoubtedly right in this critique, as is evident from even a quick perusal of early torts treatises in the United States as well. Continue reading "When Regulation Fails?: Public Nuisance Liability as Fallback Option or Policy Plan"

Privacy Depends

Solon Barocas & Karen Levy, Privacy Dependencies, 95 Wash. L. Rev. 555 (2020).

American law typically treats privacy and its associated rights as atomistic, individual, and personal—even though in many instances, that privacy is actually relational and interdependent in nature. In their seminal article on The Right to Privacy, for instance, Samuel Warren and Louis Brandeis described privacy as a “right to be let alone.” Doctrines of informed consent are generally concerned with “respect[ing] individual autonomy,” even as the information disclosed or withheld by that consent may implicate the privacy of others. Similarly, consumer genetics platforms seek authorization from a single individual before processing or uploading a genetic profile, even though law enforcement now routinely searches those profiles to identify distant relatives who may have committed prior criminal acts.

In their article, Privacy Dependencies, Solon Barocas and Karen Levy move beyond the observation that privacy is relational to provide a typology of the “varied ways in which one person’s privacy is implicated by information others reveal.” They identify three broad types of privacy dependencies: those based on our social or other ties (tie-based dependencies), those drawn from our similarities to others (similarity-based dependencies), and those revealed by our differences from others (difference-based dependencies). While social norms or legal obligations may serve to discipline some of these privacy dependencies, they will be inapplicable or inapposite for many others. Barocas and Levy masterfully survey the wide range of normative values and diverse areas of law that may be affected by privacy dependencies. Taking genetic data as a case study, Barocas and Levy then demonstrate how each form of privacy dependency can arise in this context—and how each has been exploited in criminal investigations. They conclude that a greater attentiveness to privacy dependencies, and when and how they arise, can inform better policymaking and give us greater purchase on the values that privacy serves. Continue reading "Privacy Depends"

Tell Me a Tax Story

As the saying ought to go, those who forget history are doomed to miss out on a lot of great stories. In Rebellions, Rascals, and Revenue: Tax Follies and Wisdom Through the Ages, Michael Keen and Joel Slemrod do their formidable best to save us from this dire fate. They also amply fulfill their aim of proving the truth of their opening quotation, from H.L. Mencken, to the effect that taxation is not just “eternally lively” but of greater interest than “either smallpox or golf.”

Keen and Slemrod are also so impressively comprehensive in their self-set task of combing thousands of years of history, across multiple continents, for enjoyable or illuminating tax anecdotes that I started to take it as a challenge. I read a lot of history books on the side. So, could I think of stories worth including that they had left out? Continue reading "Tell Me a Tax Story"

Reforming Zoning for its Second Century

Michael Alan Wolf, Zoning Reformed, 70 U. Kan. L. Rev. 171 (2021).

Zoning is under attack from all parts of the political spectrum. Those on the right have long decried zoning, arguing that land use matters are better left to private actors who can regulate without government intervention by using covenants and servitudes. Those on the left have more recently come to recognize that zoning has been used to segregate populations along racial and economic lines. What does this widespread criticism mean for the future of zoning?

Professor Michael Alan Wolf argues in his recent article, Zoning Reformed, that zoning is too entrenched to be abolished but that it needs to be reconstituted for its second century. In particular, zoning laws need to be reformed to address three contemporary challenges: climate change, pandemic resiliency, and social justice.

Professor Wolf does not suggest that localities should abolish zoning; rather, he is worried about inertia and inaction. He writes that “to do nothing to adapt zoning and other forms of land use regulation to the stark current and anticipated realities would be an abdication of responsibility, much like waiting for COVID-19 suddenly to disappear.” (P. 177.) Continue reading "Reforming Zoning for its Second Century"

When the Price Isn’t Right: Why Markets Aren’t the Panacea for Climate

Danny Cullenward & David G. Victor, Making Climate Policy Work (2020).

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. Continue reading "When the Price Isn’t Right: Why Markets Aren’t the Panacea for Climate"

Is Obedience Always Support? Government Lawyers in Evil Regimes

David Luban, Complicity and Lesser Evils: A Tale of Two Lawyers, 34 Geo. J. of Legal Ethics 613 (2021).

Part of what makes David Luban so masterful is his ability to pose a critical question. After reading the first few sentences of his article, Complicity and Lesser Evils: A Tale of Two Lawyers, I immediately wanted the answer. Should lawyers participate in a corrupt or evil regime? Should they try to use their power to mitigate the damage or should they run in the opposite direction, knowing that obedience is support so no matter what they does they will end up responsible for the evil result? The answer to this question matters not only to give government lawyers guidance in the unlikely event that an evil regime takes over, but also to deepen understanding of the role of government lawyers in normal(ish) times.

Another thing that makes Luban so talented as a lawyer, academic, and philosopher is his ability to tell a story. Rather than answering the question he poses with philosophical rumination alone, he recounts the story of two lawyers who worked in the Third Reich. Some questions are hard to answer with logic and reason, citations to cases, or philosophical principle. This is one of them. The result of the story is that, when Luban does return to moral philosophy, its practical import is so clear, its human side so vivid that one hardly notices that it is, in fact, philosophy. Continue reading "Is Obedience Always Support? Government Lawyers in Evil Regimes"

Freedom by Custom: Vernacular Legalisms in Nineteenth-Century Cuba

Freedom with Local Bonds: Custom and Manumission in the Age of Emancipation examines the ways in which claims to freedom were interpreted by judges who drew on local custom in contested manumission suits in 19th century Santiago de Cuba. Slavery scholars have long examined manumission in Cuba (known as coartación) as the practice of paying for one’s freedom with fixed instalments and terms agreed upon by both the enslaved and enslaver. Drawing on the Roman law concept of peculium, enslaved people could earn wages and pay a portion of these towards their purchase price. Coartación was one strategy that created a status of conditional freedom. Other manumission strategies included promissory notes of freedom for terms of service, typically conveyed through testament at death and at baptism. Notwithstanding this plurality, Chira shows that coartación accounted for 75% of the manumissions in Santiago de Cuba during the 19th century. Because these were arrangements that stretched over considerable periods of time, the legal status of conditionally freed people was often nebulous and dependent on local customary interpretations of freedom contracts. Although the enforcement of manumission contracts was ultimately a legal matter, Chira shows that jurists depended heavily on local custom to rule in the cases she examines.

The article examines the local bonds, community ties, landholding patterns, and economic exchanges that manumission depended on—given its relatively sparse doctrinal or formalist treatment in the law. In so doing, Chira pushes us to “consider an alternative genealogy of freedom ideologies in the 19th century.” (P. 950.) Cuba was one of the last two nations to abolish slavery in 1886. The aftermath of the Haitian Revolution unfolded simultaneously with the voracious global demand for sugar for mass consumption. As such, 19th century Cuba experienced plantocracy expansion, black repression, and dependence on enslaved labor for sugar. This scenario would not have created the propitious conditions for manumission. Yet as Chira shows, enslaved people had been pursuing individual paths to freedom through the courts throughout the century. In fact, free people of color represented one-third of the population in Santiago de Cuba, and nearly half of its landholdings were owned by free people of color. (P. 959.) As Chira notes, numbers like these tell one story, but they also reveal very little about “the vexed dynamics of manumission.” (Id.) Continue reading "Freedom by Custom: Vernacular Legalisms in Nineteenth-Century Cuba"

(Almost) Everything You Always Wanted to Know on Legal Theory, Democratic Theory, and their Connection

In this book, The Making of Constitutional Democracy: From Creation to Application of Law, Paolo Sandro has done what few in recent common law scholarship have attempted: presented a persuasive case for the interconnection between some issues in high legal theory and democratic legitimacy. His excursion into legal theory is needed to argue against, among others, Kelsen, legal realists, critical legal scholars, and interpretivists that there is a meaningful distinction between law-applying and law-creation and that the former is not always the latter. But these points are also pivotal to democratic theory. His case, briefly put, is this: if there is only constant creation of meaning in legal processes, then there is no such thing as applying the (ex ante) law, and law could not fulfil its function of conduct guidance in complex societies. Also, there would be no way that people rule themselves, even through their representatives, for whatever is legislated or democratically created does not (ex ante) determine the results of individual cases. So there could be no real collective autonomy, undercutting democratic legitimacy.

Sandro is discussing law-application not only by officials, but by private law subjects as well. The book is a real learning experience. If you have accepted some of mainstream legal or political thinking, get ready to have several of your received ideas challenged on a sophisticated level. Continue reading "(Almost) Everything You Always Wanted to Know on Legal Theory, Democratic Theory, and their Connection"

Transforming Digital Bureaucracy with Administrative Empathy

Sofia Ranchordás, Empathy in the Digital Administrative State, 71 Duke L. J. 1341 (2022).

When one reads Franz Kafka’s The Trial, one is constantly struck by an uneasy sense of alienation and the weight of dehumanization that arises from the absurdity of the rules-based world that K. finds himself in. The slavish application of those rules by often faceless, compassionless, and definitely empathy-less bureaucrats fills the pages with dread. In this bureaucratic world, the personal is eliminated and replaced by the “tyranny of distance” between individuals and the state. Scholars like Cary Coglianese rightly point to the continuing need for human empathy within the system. In similar vein, Sofia Ranchordás’ new article, Empathy in the Digital Administrative State, captures this dehumanizing condition of bureaucratic distance and situates it within the modern digital context – where digitalization of the bureaucratic state, and the pursuit of efficiency crowds out empathy in administrative decision-making. Her critique is that “[w]hen digital technology is used as an intermediary for rights, law is often automatically applied without any room for empathy, regardless of the circumstances experienced by citizens.” This means that even small errors, which in the past may have been easily corrected or waived by an empathetic bureaucrat, may be amplified in effect under a digitized system which may impose significant (sometimes insurmountable) human costs for rectification.

Drawing from two scandals in the Netherlands and the United States, Ranchordás illustrates how administrative decisions made through algorithms, without the mediation of a human decision-maker, can result in severe injustice, some of which may be irreversible. In the case of the Netherlands, this was a fiasco under its childcare benefits scheme which affected more than twenty thousand families. Drawing on large databases and computational algorithms, the Dutch tax authorities wrongly accused citizens of fraudulently claiming child allowance since 2012. Demands were made for the repayment of tens of thousands of euros, causing severe financial hardship that spiralled into homelessness, divorce, and/or bankruptcy, with some even losing parental rights due to their inability to care for their children anymore. As Ranchordás points out, some of the charges were triggered by minor administrative errors, and what made it worse was that affected citizens were not able to navigate the complex bureaucratic systems or defend themselves before public bodies. Continue reading "Transforming Digital Bureaucracy with Administrative Empathy"

Synthesizing Seclusion Law

Sonia Katyal & Charles Graves, From Trade Secrecy to Seclusion, 109 Geo. L.J. 1337 (2021).

In their new paper, From Trade Secrecy to Seclusion, Charles Tait Graves and Sonia Katyal have performed a monumental service for researchers interested in the ways that firms and governments have leveraged trade secret and confidentiality laws to prevent the disclosure of large swathes of information. I describe Graves and Katyal’s effort as monumental not just for its scholarly value, but also for its breadth (and length). They catalog an enormous variety of “increasingly aggressive attempts to use the law to shield information from the public eye that either does not fall within the traditional, market-competitive ambit of trade secrecy at all, or that faces a strong public interest for at least some degree of disclosure.”

Examples abound, from Merck’s attempts to shield data on the harms of its drug Vioxx, to the unwillingness of manufacturers of voting machines and criminal justice algorithms to share their source code, to employers’ claims that employee diversity and salary data are confidential trade secrets. In these and other examples, Graves and Katyal demonstrate how firms have pushed trade secrecy law beyond its traditional bounds of promoting innovation by preventing unfair competition. Coupled with the considerable deference that the government shows to corporations faced with FOIA requests, these efforts, they argue, are creating an “all-purpose seclusion doctrine.” Continue reading "Synthesizing Seclusion Law"

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