Reproductive Exceptionalisms

Over the past four decades, people have increasingly turned to reproductive technologies to form their families. As technologies such as egg freezing, in-vitro fertilization, and pre-implantation genetic diagnosis have developed and improved, processes that were once left to chance are now subject to human control. As a result, what were once hopes—for instance, deferring childbearing until some point in the future, or having a male or female child—have transformed into expectations on the part of technology users.

Yet expectations are sometimes dashed because of avoidable human error, like mislabeling a sperm sample or failing to check liquid nitrogen levels in high-capacity freezers. As Dov Fox shows in his comprehensive new book, Birth Rights and Wrongs, courts have largely been unsympathetic to lawsuits stemming from these types of errors. Fox convincingly argues that courts should redress thwarted expectations about reproduction through the tort of reproductive negligence. Continue reading "Reproductive Exceptionalisms"

Reconciling Risk and Equality

Deborah Hellman, Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning, 98 Wash. L. Rev. __ (forthcoming, 2020), available at SSRN.

States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act,1 which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of low risk individuals.

These assumptions about the benefits of risk assessment tools are all contested. But critics also argue that, even if these instruments improve overall accuracy, they are constitutionally suspect. While no instrument explicitly uses race as a “risk factor” (which in any event is probably barred by the Supreme Court’s decision in Buck v. Davis2), several do incorporate sex (with maleness increasing the risk score) and many rely on factors that are highly correlated with race or socio-economic status, which is said to violate equal protection principles.3 Continue reading "Reconciling Risk and Equality"

Charting the Interactions of Legal Tech and Civil Procedure

David Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. __ (forthcoming, 2020), available at SSRN.

Myriad examples—from the rise of chief technology officers in law firms to the over $1.6 trillion invested in legal tech start-ups in 2018 to the use of AI-assisted drafting tools by Walmart’s legal department—demonstrate how technology is inexorably changing the American legal profession and courts, despite their small “c” conservative nature. When Chief Justice John Roberts was asked whether “smart machines, driven with artificial intelligences, will assist with courtroom fact finding or, more controversially even, judicial decision making,” he replied, “It’s a day that’s here….” And the legal community’s integration of more mundane—if no less important—technological tools such as videoconferencing into its existing practices has been dramatically hastened by the COVID-19 pandemic. A prominent example of this trend was when the Supreme Court of the United States held its first telephonic hearing in May.

While legal scholars and the popular press frequently comment on these developments, even the most expansive futurist takes about robot judging focus on how lawyers and the judiciary are (or will be) using new technology to do their traditional work. And courts mostly wrestle with how to adapt existing doctrine to specific applications of new tools. Against this context, David Freeman Engstrom and Jonah Gelbach’s Legal Tech, Civil Procedure, and the Future of Adversarialism marks a significant theoretical push forward, identifying and exploring the overarching question of how legal tech and the civil justice system’s procedural rules mutually shape each other. Continue reading "Charting the Interactions of Legal Tech and Civil Procedure"

We’re All in This Together

Luca Enriques, Alessandro Romano & Thom Wetzer, Network-Sensitive Financial Regulation, 45 J. Corp. L. __ (forthcoming, 2020), available at SSRN.

It is difficult to know what wisdom from pre-pandemic times will carry forward. One thing that feels very relevant, however, is the notion of applying network-sensitive approaches to regulatory structures that previously were atomistic in orientation. COVID-19 (the global emergency, not the virus) is nothing if not the product of global networks.

It takes some time for the full impact of a new paradigm to be realized. Those of us who have followed the systemic risk literature over the last decade or more will, I think, recognize in “Network-Sensitive Financial Regulation” a more comprehensive embrace of network theory than we have seen so far. Post-crisis recognition of systemically important financial institutions, or SIFIs, has always been somewhat awkwardly bolted onto existing regulatory structures. This is an exceptional article, because it represents a genuine step change in our thinking. It convincingly demonstrates how we might better incorporate network awareness into systemic risk analysis and macroprudential regulation, and then extends its insights further, to the micro level of corporate governance. Continue reading "We’re All in This Together"

Judicial Review and Emergency Powers

Lindsey Wiley and Steven F. Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133 Harv. L. Rev. Forum __ (forthcoming, 2020), available at SSRN.

The coronavirus epidemic has raised urgent questions of constitutional rights and judicial review. In response to the pandemic, which has taken over 100,000 lives in the US and many more abroad, governments at all levels have enacted a host of policies that potentially threaten constitutional rights or butt against structural limits on government power. Numerous cases have been filed challenging some of these policies, arguing that they violate the Free Exercise of Religion and Free Speech clauses of First Amendment, the Second Amendment, constitutional protection for abortion rights, the Takings Clause, separation of powers principles, and other provisions of federal and state constitutions.How should we treat these claims? In particular, how should courts treat them?

In light of these questions, it’s hard to imagine a more timely and relevant constitutional law article than Lindsey Wiley and Steve Vladeck’s forthcoming article. In it, Wiley and Vladeck ask whether normal judicial review should be “suspended” during the ongoing pandemic. Continue reading "Judicial Review and Emergency Powers"

On the Dangers of Beautiful (Contract) Theory

Is there a moral principle that animates contract law everywhere? In his thoughtful book that elegantly spans high theory and ground-level doctrine, Prince Saprai argues that there is not. While contract law in Great Britain might be designed to promote trust through cooperative relations, that is not its exclusive purpose. Moreover, even that purpose is contingent on the particular normative priorities of the British with respect to contract. Saprai says that contract theorists, especially those who promote the idea that contract law tracks promissory morality, are not just wrong about their primary claim but also about their underlying assumption that contract law has an essential governing moral principle that is independent of the commitments of those who use it in a given time and place.

Saprai suggests that contract theorists tend to overclaim in another respect as well. Whatever the constitutive purpose of contract law in a jurisdiction, that purpose is usually not determinative of doctrine in any complete way. There are many ways to interpret the purpose and how it is best served by rule choices. Even systems that espouse the same purpose for contract law are likely to diverge in their substantive doctrines. Continue reading "On the Dangers of Beautiful (Contract) Theory"

Global Democracy and Comparative Distrust

Stephen Gardbaum, Comparative Political Process Theory, 18 Int’l. J. Const. L. __ (forthcoming, 2020), available at SSRN.

The United States is a democracy in crisis. Deep-seated institutional racism and ongoing systemic threats to the political process in the United States demand our active attention. The challenges to American representative democracy that John Hart Ely outlined in Democracy and Distrust—voter suppression and systematic political disadvantage due to discrimination—and his arguments for remedial representative reinforcement seem more salient than ever. But what of the global crisis? Democracies around the world are faltering. Do Ely’s insights have purchase for Poland or Hungary, South Africa or Turkey? Stephen Gardbaum persuasively argues that they do, albeit after some elaboration and refinement, in his new piece, Comparative Political Process Theory, forthcoming this winter in the International Journal of Constitutional Law. (The article will also be the focus of a set of ICON Debate! commentaries, published in the same issue.) Using Ely as inspiration, Gardbaum provides a new and broader framework for identifying and categorizing political process failures in representative democracy, and explores a wider set of remedies for these breakdowns, including—though not limited to—judicial review.

A political process failure is the violation of core democratic procedural values or principles either by “delegitimiz[ing] the relevant process” through a singular grave occurrence, or by “systematically undermin[ing]” them over time. (P. 33.) And to ground the analysis, Gardbaum identifies a minimum slate of these core democratic procedure values, including robust political competition and contestation; pluralistic governance; differentiated institutional roles; accountability; political equality among citizens; and representation. Continue reading "Global Democracy and Comparative Distrust"

6 Degrees of Delegation

Cary Coglianese, Dimensions of Delegation, 167 U. Penn. L. Rev. 1849 (2019).

In Dimensions of Delegation, Cary Coglianese provides a principled account of the U.S. Supreme Court’s nondelegation jurisprudence. Specifically, he reconciles the seemingly idiosyncratic Schechter Poultry case with subsequent applications of the nondelegation doctrine by theorizing a multi-dimensional model of delegated power. In so doing, he provides a template for rethinking nondelegation as a matter of doctrine, rather than as a matter of political theory or political economy, as it is so often treated by partisans on both sides.

I long have puzzled over the jurisprudential treatment of Schechter Poultry. The Supreme Court has refused to overrule the case but yet has declined to follow it. More cryptically, even detailed discussions of nondelegation precedent, such as Justice Gorsuch’s recent romp in Gundy v. United States, fail to discuss important nuances of the case—including the fact that the National Industrial Recovery Act of 1933 (NIRA) contained explicit criteria for when the President could approve a code of fair conduct that would easily pass the modern “intelligible principle” test. The NIRA required that three criteria be met before the President could endorse a code of fair competition: (1) the trade association that proposed the code was “truly representative” of the regulated industry; (2) the code was not “designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them”; and (3) the code would “tend to effectuate the policy of this title.” While this standard leaves the president with broad discretion to choose which codes to approve, it can hardly be suggested that it constrains executive discretion less than delegations subsequently endorsed by the Court without a nod to Schechter Poultry—up to and including the statutory charge to many agencies to discharge their delegated authority in the “public interest.” Continue reading "6 Degrees of Delegation"

Reinvigorating the Non-Delegation Doctrine

Cary Coglianese, Dimensions of Delegation, 167 U. Penn. L. Rev. 1849 (2019).

Cary Coglianese’s article, Dimensions of Delegation, is timely. The Court has invoked the non-delegation doctrine as the basis to invalidate a statute only once 85 years ago. The only statute that the Court has ever invalidated based on application of the non-delegation doctrine actually delegated extraordinarily broad power to private participants in markets rather than to an agency. During the past year, however, five Supreme Court Justices have made it clear that they are open to the possibility of relying on the non-delegation doctrine as the basis to hold statutes unconstitutional. Even many scholars who have long opposed attempts to reinvigorate the non-delegation doctrine have become more receptive to that possibility in today’s conditions.

A recent online symposium published by The Regulatory Review illustrates the state of the debate. Jonathan Adler and Chris Walker introduced the symposium with their excellent essay: “Delegation and Time.” They made the point that the increasing inability or unwillingness of Congress to amend broadly worded statutes that confer regulatory power on agencies has created a situation in which agencies are forced to apply statutes that are so old that they were drafted when no one could have anticipated the uses to which they are now being put. Thus, for instance, the FCC is using the Communications Act of 1934 as the basis to regulate the internet and the EPA is using the Clean Air Act of 1970 as the basis to take the actions required to mitigate climate change. The result increasingly is a series of agency actions that Congress never contemplated and that might not be consistent with the values of the Congress that enacted the old statute, the present Congress, or the people. Continue reading "Reinvigorating the Non-Delegation Doctrine"

The Rich (Families) Are Different

Allison Anna Tait, The Law of High-Wealth Exceptionalism, 71 Ala. L. Rev. __ (2019), available at SSRN.

In April of 2019 lawyers representing the “Kimberley Rice Kaestner 1992 Family Trust” argued a case against the North Carolina Department of Revenue before the Supreme Court of the United States. A few months later the Court unanimously ruled in favor of the trust in that case. The Court’s decision was a major victory for wealthy families; not so much for ordinary folks who pay state income taxes. You may not have heard of the Kaestner case. No news about it appeared in the New York Times. Ever. But you can and should read Allison Anna Tait’s insightful article, The Law of High-Wealth Exceptionalism. It’s about the Kaestner case. Well, it’s not really about the Kaestner case; actually Tait doesn’t even mention it. But her article is, at least in part, about the category of cases that the Kaestner case belongs to and it is about the state of affairs that brought about the case, and many others like it, and so much more.

In her article, Tait gives us a panoramic perspective—a bird’s eye view—of what she calls “the law of high-wealth exceptionalism.” The law of high-wealth exceptionalism is not any particular law, but rather a collection of favorable laws that, functionally, apply only to high-wealth families. Because, in theory, while anyone could take advantage of a scheme like that which the Kaestner family’s lawyers concocted to externalize the cost of governmental goods and services provided to Kimberley Kaestner by the State of North Carolina, in practice you really need to have a lot of wealth to do so. And as Tait points out, wealthy families “benefit not only from their material resources but also from the fact that most of the population is not familiar with the vast network of laws that govern family wealth and may even be disinterested in [legal] events that are of core concern to the family oligarchs.” Continue reading "The Rich (Families) Are Different"

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