The military justice system receives embarrassingly little attention from the legal academy in general and from legal scholarship in particular. Part of that may be the Supreme Court’s fault; it has been 35 years since Congress gave the Court direct appellate jurisdiction over the Court of Appeals for the Armed Forces (“CAAF”), the Article I court that sits atop the court-martial system. In that time, the Court has taken ten cases from CAAF—almost all of which, including Ortiz from this Term (which I argued on behalf of the Petitioner), have involved structural questions about the jurisdiction of military courts, the appointments of military judges, or both. There are compelling reasons why the Justices can and should take more (and more substantive) cases from CAAF, but there are important limits on their power to do so. Under current law, CAAF has discretion to choose which cases it hears (it has mandatory jurisdiction only in capital cases and those referred to CAAF by service-branch Judge Advocates General), and the Supreme Court can grant certiorari only if CAAF itself reviewed a court-martial appeal. As a result, a direct constitutional challenge to a criminal conviction cannot get to the Supreme Court if it arises from a court martial that CAAF does not review—the only context in the entire federal system today in which that is true. And as I have argued elsewhere, it is not because these cases are unimportant. Instead, “there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.”
But the dearth of Supreme Court attention to the military justice system hardly explains the dearth of scholarship about it. After all, the Court has decided exactly one case arising out of the Guantánamo military commissions since they were established in November 2001, which have produced exactly eight convictions, all or parts of five of which have not survived appeal. Yet the pages of law reviews and legal monographs are replete with detailed analyses of the various disputes arising from those proceedings. Instead, the best that can be said about the paucity of good military justice scholarship is that, for whatever reason, there is not the same interest among non-military lawyers in the myriad substantive, procedural, and evidentiary issues that arise in the court-martial system. This is true even though that system has (1) increasingly focused its work on offenses that look less and less like the classic military offenses subjected to military justice at the Founding and that therefore increasingly raise legal questions of general applicability; and (2) recently undergone some of the most important and sweeping reforms since the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. Instead, almost all of the best military justice scholarship these days has come from military lawyers—such as Captain Brittany Warren’s 2012 Military Law Review article.
The latest example is a 2016 article by Rodrigo M. Caruço, a Captain and lawyer in the U.S. Air Force Judge Advocate General’s corps, which offers a quantitative and qualitative assessment of the role of CAAF within the military justice system. As Caruço documents, CAAF both is, and sees itself as, “the supreme court of the military judicial system,” which is why Congress created its predecessor as part of the UCMJ. But rather than act like a “court of last resort,” CAAF “acts as an intermediate error-correction court…far too often.” Even though CAAF only conducts plenary review of approximately 40 convictions per year, Caruço’s quantitative analysis suggests that somewhere between half and 90% of its decisions in such cases entail little more than modest error correction. And because of the aforementioned limits on the Supreme Court’s appellate jurisdiction, the net effect is to dramatically reduce the incidence of “law declaration” within and without the military justice system. Instead, the overwhelming majority of cases (and issues) within the military justice system get no further than the intermediate appeals courts—the service-branch courts of criminal appeals—which themselves dispense of most appeals summarily. Continue reading "Why Military Justice Doesn’t Get Enough Academic Attention"
Too often when discussing matters of markets and finance, policymakers and scholars lose focus of the basic fact that people are at the core of markets and finance. It is people who move markets. It is people who generate supply and demand. It is people who need financing—for homes, for investments, for education, for healthcare, and other life decisions. Behind the faceless reams and terabytes of data are people who make up the fuels and gears of the marketplace. Behind the powerful models and promising technology that frequently dominate the contemporary financial markets are people. Properly recognizing the fact that people are at the heart of markets and finance is one of the critical keys to better understanding and harnessing the power of markets and finance.
Two illuminating new books, one by a legal scholar and one by a financial economist, delve into different noteworthy aspects of the human side of markets. Professor Mehrsa Baradaran of the University of Georgia School of Law recently published The Color of Money: Black Banks and the Racial Wealth Gap, a book that examines the long-lasting effects of racism, markets, and regulation on Black communities in the United States; and Professor Andrew Lo of the Massachusetts Institute of Technology’s Sloan School of Management recently published Adaptive Markets: Financial Evolution at the Speed of Thought, a book that offers a new and more human-oriented framework for thinking about markets. Each book is distinct in their areas of focus and scope, but they both share a fundamentally human-centered perspective about the promising and perilous roles of people in market and financial decisions. Continue reading "The Human Side of Markets"
Aditi Bagchi, Contract and the Problem of Fickle People
, 53 Wake Forest L. Rev
. ___ (forthcoming), available at SSRN
Whether by design or by accident (or both), the world rewards people who are stable—who have reliable desires, low discount rates, and long-term plans. Young children who pass the marshmallow test appear to do well on achievement tests ten years later. “Commitment” and “follow-through” are often prized cultural values, and focus and single-mindedness often correlate with success. We link consistency with rationality; economists often don’t even know what to do with people who don’t have consistent preferences.
As Aditi Bagchi suggests in Contract and the Problem of Fickle People, maybe the law inappropriately helps to enshrine this state of affairs. Even if stability contributes to productivity—we can’t build skyscrapers or microprocessors if we’re changing our minds all the time—perhaps arguments routinely made about the private law artificially and accidentally overvalue stubbornness, rigidity, and resistance to change. Continue reading "Is Contract Law Only for the Stubborn?"
Cortney Lollar, Criminalizing (Poor) Fatherhood
, 70 Ala. L. Rev.
__ (forthcoming 2018), available at SSRN
In the 1980s and 1990s, many scholars and advocates debated the best way to reform our country’s welfare system. During those debates, feminists called for increased enforcement of child support orders against “deadbeat dads.” Congress enacted the 1996 welfare reform act known as the “Personal Responsibility Act” at the same time as it promulgated “war on crime” measures that increased federal penalties for drug-related crimes. Twenty years later, our country is experiencing both a rising gap between the rich and poor and mass incarceration of men of color. Many scholars have discussed the problem of mass incarceration, but there is far too little scholarship on the experience of poor people affected by welfare reforms.
Cortney Lollar’s Criminalizing (Poor) Fatherhood shines a welcome spotlight on the role that law plays in increasing the misery of the poor. In this well-written and well-reasoned article inspired by Lollar’s experience as a prosecutor, she shows how the confluence of welfare reform and criminal-enforcement measures result in state child support systems that jail non-custodial fathers who cannot afford to pay their child support. Lollar uses feminist analysis to demonstrate how an approach once advocated by feminists actually perpetuates stereotypes about fathers as providers and undermines their relationship with their children, without aiding the mothers who the reforms were supposed to help. Criminalizing (Poor) Fatherhood is a must read for anyone interested in how our criminal justice system perpetuates racial, class, and gender inequality in our society. Continue reading "Criminal Fines and the New Debt Peonage for Poor Fathers"
I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted with unconstitutional or otherwise illegal Executive Branch action, issue nationwide injunctions: Sam Bray’s Multiple Chancellors: Reforming the National Injunction, and Amanda Frost’s In Defense of Nationwide Injunctions. Hopefully, the reader won’t turn on me.
Bray’s article, which was reviewed by Professor Kevin Walsh in a pre-publication Jot in the Courts Law section of Jotwell, is deeply skeptical of the nationwide injunction, arguing that federal injunctions should be no broader in scope than necessary to protect the plaintiff from the injury underlying the plaintiff’s standing to seek the injunction in the first place. By contrast, Frost’s article contends that federal courts should be willing to grant nationwide relief not only when necessary to provide plaintiffs with complete relief but also when necessary to protect numerous similarly situated parties who cannot quickly bring their claims to federal court. Continue reading "Two Views on the Nationwide Injunction"
In Jackson v. Deen, 959 F. Supp. 2d 1346 (S.D. Ga. 2013), an employee brought a Title VII claim against her employer on the grounds that her coworkers had been subjected to racial harassment. The employee did not complain that she had been subjected to such harassment. Instead, she claimed to have suffered a cognizable injury because her employer’s harassment of coworkers “deprived her of ‘harmonious working relationships with her African-American subordinates …’” Id. at 1354. Rejecting the notion that the plaintiff was an aggrieved party under Title VII, the court explained that “[q]uite simply, workplace harmony is not an interest sought to be protected by Title VII.” Id. at 1355. In her article, Toward a Law of Coworkers, Professor Naomi Schoenbaum recognizes that this may be true as a matter of current employment law, but she takes issue with the notion that workplace harmony is not an interest worth protecting through employment law.
The premise of Schoenbaum’s article is relatively straightforward: modern employment law is so focused on individual rights that it is generally unconcerned about encouraging coworker bonds. One of the things that makes this thought-provoking article so interesting, however, is how clearly Schoenbaum explains exactly how employment law undermines coworker bonds and exactly why that is a bad thing. Continue reading "Valuing Coworker Bonds in Employment Law"
Political polarization is so endemic in the United States today that we are all becoming experts in it. The compilation of moral, strategic, and tactical weaponry on either side of a deeply polarized issue is an art form in its own right. Once more or less limited to the “culture wars” issues of family and sexuality—the bread and butter of this Jotwell page—the right/left polarization of U.S. political culture has exploded into every issue touched by a hyper-active president who thrives on conflict. Maintaining a taste for critical engagement, while staying morally alive and strategically and tactically mobile, has gotten a lot harder since November 8, 2016.
Now comes Carol Sanger with a book about the premier culture wars issue—abortion—in which she strives to engage the polemics that beset the topic without being spoken by them. Sanger’s own “position on the issue” is clearly pro-choice, and she is sometimes willing to call out the other side when she thinks they are being cruel or acting in bad faith. But About Abortion: Terminating Pregnancy in Twenty-First Century America repeatedly pushes beyond its own polemical moments to engage dimensions of pregnancy and abortion so complex and surprising that they defy classification in the settled pro and con camps. “Pro-choice people are not murderers and pro-life people are not idiots.” (P. xiv.) Continue reading "Abortion and the Struggle for Meaning"
Susan N. Gary, Best Interests in the Long Term: Fiduciary Duties and ESG Integration
, 90 U. of Colo. L. Rev.
__ (forthcoming 2018), available at SSRN
What is the time frame of fiduciary duties? In other words, what time horizon should fiduciaries have in mind as they execute their responsibilities? This is an underexamined aspect of fiduciary law, and Professor Susan Gary’s piece, Best Interests in the Long-Term: Fiduciary Duties and ESG Integration, provides a thought-provoking entry point using the lens of socially responsible investing (SRI). Gary argues that if prudent investing evolves to encompass a longer-term understanding of value creation, then consideration of environmental, social, and governance (ESG) factors may become not only possible, but legally required. If this occurs, we may witness a tectonic shift in investor behavior similar to that produced by enshrining modern portfolio theory (MPT) in fiduciary law.
Gary starts by reviewing the different terminologies and strategies of SRI. The goal is to differentiate ESG integration—Gary’s primary object of analysis—from other types of SRI. ESG integration is a holistic investment strategy that considers traditional financial factors alongside material ESG factors, with materiality defined as the likelihood that the ESG factor has some relationship with financial outcomes. Environmental factors might include a company’s energy efficiency policies, while social factors can run the gamut from human rights to labor conditions to community relations. Governance factors, in turn, involve such issues as board diversity, executive compensation, and transparency policies. Gary contrasts ESG integration with early forms of SRI that employed negative screening mechanisms to exclude certain socially undesirable companies or classes of assets from an investment portfolio. She also distinguishes it from a more modern form of SRI called impact investing, which typically involves a sacrifice of economic return in exchange for a measurable social impact. Continue reading "The Temporal Dimension of Fiduciary Duty"
Sam Quinones, Dreamland: The True Tale of America’s Opiate Epidemic (2018).
For my Jot this month, I chose a book that is somewhat outside of the typical academic genre, but, for reasons that I will explain, nonetheless worthy of attention by health law scholars. My summer travels this year were cast against the background of reading Sam Quinones’s Dreamland: The True Tale of America’s Opiate Epidemic, which I started mostly out of curiosity and desiring a page-turner, non-fiction story. Quinones is a former newspaper reporter, for various outlets, including the Los Angeles Times, who spent his career covering the crack epidemic, gangs, drug trafficking, immigration, neighborhood news, and local government. For nearly a decade he immersed himself in Mexican culture and politics, learning Spanish and delving into topics ranging from the street gangs, the PRI, Tijuana opera, drag queens, and taco and popsicle vendors. He is the author of myriad news articles and two other nonfiction books of stories. His ground-level experiences and insights come through in Dreamland, which weaves together three primary narratives: (1) heroin dealers from an obscure Mexican state of Nayarit; (2) pharmaceutical marketing practices and the evolution of pain treatment; and (3) economic decline and loss of opportunity in small-town and rural America. The chapters shift among those three narratives, interspersed with poignant anecdotes from individuals and families personally affected by addiction, overdose, and loss.
Working somewhat backwards chronologically, Quinones starts from his comfort zone, the tale of “black-tar” heroin dealers from Nayarit, Mexico, and their novel drug distribution strategy, which he likens to Domino’s pizza franchising. Dealers avoided large cities that were the hotbeds of crack and other earlier illegal drug markets, locating instead in mid-sized cities with enough immigrant populations that the Nayarit dealers could blend in, and with a methadone clinic or two from which the entrepreneurial dealers could establish a customer base. Dealers maintained relatively small inventories and distributed their product via drivers carrying even smaller quantities, packaged in balloons that could be swallowed in the event they were pulled over. Even if caught, the quantities typically were not of much interest to law enforcement and resulted in short jail stays and/or deportation. Drivers who returned to Mexico by choice or by law were quickly replaced by other young, eager recruits, or themselves returned after reveling in the financial spoils (including dark-blue Levi jeans) of their time up North. The distribution method allowed addicts to call their dealer and receive delivery of the product in the comfort of their own cars or homes. Dealers prioritized customer service and loyalty, offering free product (including “welcome home” packages after customers’ rehab or incarceration stays), undercutting the competition, and responding to calls quickly, efficiently, and on-demand. Continue reading "How Dreamland Colored My Summer Vacation and Thinking about the Opioid Epidemic"
Sarah Dadush, Identity Harm
, 89 U. Col. L. Rev.
__ (forthcoming, 2018), available at SSRN
You’re the kind of person who cares about protecting the environment, improving working conditions for the poor, and achieving sustainable growth. Indeed, your identity as a socially-conscious consumer is so important to you that you are often willing to pay more for a product if it is sold by a company who claims to share your values, to reflect the kind of person you want to be in this world. Attracted by this premium, more and more companies are making sustainability promises to target such consumers through commercials, print and electronic advertisements, and product labeling (often employing third-party certifications) to signal to the consumer that its products align with the consumer’s values and identity as a socially- and environmentally-conscious global citizen.
So what should happen when you find out that you were duped—that the “clean diesel” car you bought because it was advertised as being “low on emissions” actually pumped into the environment 10-40 times the nitrogen oxide pollution allowed by law (as in Volkswagen’s “Dieselgate” scandal), or where the clothes you purchased at a premium because they came affixed with a “Good Working Conditions” label were actually made in sweat shops, or where the expensive “Fair-trade” chocolate you bought for your daughter was made with the labor of beaten and enslaved children? What harm have you suffered, and what remedies, if any, should be available for your unintentional support of a system of production that polluted the environment, exploited workers, and enslaved children—practices that go against your very identity as a person? Continue reading "The Value of Identity"
Kenneth S. Abraham and Robert L. Rabin, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era
, 105 Va. L. Rev.
__ (forthcoming 2019), available at SLS
Now that self-driving vehicles roam the roads and have already caused injury and death, many talented torts scholars are reviewing the role of tort law as a regulator of this new technology and as an insurer of its victims. In their recent article, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, the formidable duo of Ken Abraham and Robert Rabin join the inquiry. Abraham and Rabin write, “The new era of automated vehicles will eventually require a new legal regime that properly fits the radical new world of auto accidents.”
Having laid down this challenge—to fit a new legal regime to a new technological era—Abraham and Rabin assess both the anticipated challenges of self-driving vehicles and the appropriate tort law responses to them. The authors expect automobiles to evolve through a number of stages, beginning with vehicles that are driver controlled, progressing to vehicles that are machine-assisted, then transitioning to vehicles that are machine-controlled but driver-assisted, and culminating in vehicles that are fully machine-controlled. Abraham and Rabin welcome this evolution. They believe that “[a]ccident rates will decline precipitously, by some estimates as much as 80-90 percent.” (P. 2.) Yet they also believe that the transition to automated technology will be “long and uneven.” Abraham and Rabin foresee periods in which varied vehicles will coexist on the roadway—much as the horse and buggy ultimately, but not immediately, gave way to the automobile. Continue reading "When Cars are the Drivers: Tort Law in the Fourth Industrial Revolution"