Monthly Archives: June 2021
Wendy Netter Epstein, A Legal Paradigm for the Health Inequity Crisis
(Feb. 17, 2021), available on SSRN
“It Shouldn’t Take a Pandemic,” read the title of an essay published several months into the COVID-19 pandemic. The bioethicist authors argued that, by focusing on moral issues relating to patient care, bioethics had “gone too small” and should be paying more attention to broader moral issues of injustice. Of course, anyone paying the slightest attention to the news over the past fifteen months has witnessed to how the pandemic has laid bare the greater suffering and death endured by people who are Black, Brown, Indigenous, poor, or disabled. The essayists point out that the inequity of poorer health and unevenly borne suffering is not new. Avoidable, and thus unjust, disparities in health, health care, and social determinants of health have been part of the health landscape in the U.S. seemingly forever, and efforts over the past decades have largely failed to dent them. Wendy Netter Epstein’s new article, A Legal Paradigm for the Health Inequity Crisis, argues that governance challenges offer one explanation for the lack of meaningful progress and suggests an approach to addressing those challenges. And she turns to an improbable chapter in health law’s history for her model: HIPAA Administrative Simplification.
By squarely focusing on how challenges in addressing health inequity are partly a governance problem, Epstein’s article makes a valuable contribution. It helps explain why health inequity has proven so intractable—it is embedded in a fragmented system where no single actor has “both adequate incentive and adequate wherewithal to create progress.” Problems of churn among various payers, the compartmentalization of government actors, and siloed funding for health and other issues are all part of this fragmentation. Currently, nothing supports, much less compels, these fragmented entities to undertake collective planning and action in pursuit of health equity. Continue reading "Health Equity Governance"
The Nineteenth Amendment promised to transform the Constitution as it did the content of equal citizenship. It has, however, done neither. Instead, as Reva Siegel explains in The Nineteenth Amendment and the Democratization of the Family, we narrowly understand “the Nineteenth Amendment as a rule prohibiting government from discriminating on the basis of sex in determining who can vote.” (P. 451.) This, Siegel compellingly argues, is an impoverishment of what the Nineteenth Amendment was meant to accomplish, and a depletion in how we define equality. The Nineteenth Amendment wrought change to the Constitution “not simply by adding voters, but by democratizing the family so that women could represent themselves in government.” (P. 451.) The quest for the vote, according to Siegel, was fundamentally a quest to restructure women’s role within the family.
It may come as no surprise that women’s participation in the polity – by eliminating the concept of virtual representation by the husband and head of the household – directly challenged traditional family roles. But lost to history is how the right to vote further implicated structural questions about voluntary motherhood, equal remuneration, and the valuation of work performed both within and outside of the household. We no longer recognize access to contraceptives, or joint property in marriage, as essential to the franchise. Nor do we incorporate the family into the constitutional framework of the Nineteenth Amendment. As such, “the history this Essay explores,” Siegel writes, “has played little role in shaping our law.” (P. 454.) Siegel addresses this erasure by reconstructing the debate over equal citizenship that the suffrage campaign began and examining the various ways recovering this forgotten history can impact our interpretation of the Constitution. In revealing exactly how the Nineteenth Amendment failed to resolve the problem of women’s access to full citizenship, Siegel shows us that it still could. Continue reading "Bringing the Nineteenth Amendment Home"
Recently, researchers and advocates have brought to light the extra financial costs of living with disabilities, or as some have called it the “crip tax.” They showcase the expenditures disabled people make because they have a disability, which are usually invested in necessities such as assistive technology, household accessibility renovation, service animal maintenance, or the purchase of special food due to dietary restrictions. These expenses are particularly onerous as this population has historically faced major barriers to entering and staying in the workforce, in addition to earning lower wages on average compared to their non-disabled peers.
In her excellent new article, Disability Admin: The Invisible Costs of Being Disabled, Liz Emens makes an important contribution to this discourse about the “taxes” imposed on individuals with disabilities. Emens exposes and conceptualizes other significant, yet non-financial, costs imposed on individuals with disabilities as they move through the non-disabled world. These costs are borne out of the incredible amount of time and mental energy people with disabilities exert on a daily basis while engaging with mundane tasks (like repeatedly explaining their needs to strangers, filling endless amount of forms, or constantly rearranging their routes so that they would be accessible), red tape, and the advocacy needed to exercise their rights. This is a type of labor which Emens calls “disability admin,” and is an extension of her work on “life admin.” Continue reading "The Everyday Struggles of Disability Law"
About ten years ago, I was teaching substantive criminal law, and I had a mini-revelation. When it comes to mass incarceration, I was part of the problem. Literally hundreds of lawyers had passed through my criminal law class by then. Some of them were prosecutors, and they were (and are) participating in the project of mass incarceration, adding bodies to the prisons and jails of this country, one person at a time. They are generally smart, decent and thoughtful people, trying to do justice in the context of particular cases in front of them, but they are doing so within a system that is not actually designed to deliver just outcomes. In so doing, they are helping to perpetuate that system. Reflecting on my own role, I had the distinct sense that I had not done enough to provide them with the critical tools they would need to understand and grapple with the realities of their jobs. I was perpetuating that system, too.
Since that time, I have engaged in a painstaking, incremental process of redesigning my substantive criminal law class. The process is still ongoing. Alice Ristroph’s article The Curriculum of the Carceral State, which is both an intellectual history and a practical guide, offers important guidance for me, and for others engaged in this reconstruction process. Continue reading "Law Schools and the Carceral State"
Jamelia Morgan, Disability’s Fourth Amendment
, 122 Colum. L. Rev.
__ (forthcoming, 2022), available at SSRN
At the end of 2018, USA Today published a list of “normal” activities that had recently prompted calls to the police when Black people engaged in them. The list, which highlighted a series of viral incidents in which white people had wrongly called the police on Black people engaging in everyday activities, included incidents like police calls over Black people barbecuing at a park, sitting in a Starbucks, and mowing lawns. Many of these incidents rightly generated public outrage—and in some instances material consequences—for those who had wrongly sought police intervention. By presenting a list of the “normal, everyday” activities which resulted in police calls when Black people engaged in them, the story highlighted the role that racism plays in what public conduct is perceived as criminal.
Jamelia Morgan’s Disability’s Fourth Amendment invites us to go further and interrogate the ways in which “normal” itself—and associated understandings of what is “reasonable” policing—produce presumptions of criminality when mapped onto disabled “bodyminds” (a term that Morgan borrows from disability studies scholar Sami Schalk). Morgan argues that by failing to account adequately for disability, Fourth Amendment doctrine under-protects people with disabilities, subjecting them to a greater likelihood of stops, searches, seizures, and excessive force. Most troublingly, Prof. Morgan compellingly makes the case that many of the very indicia used to justify police action (including the use of force) under the Fourth Amendment overlap with physical, mental, and behavioral manifestations of disability. Continue reading "People With Disabilities and the Right to “Live in the World”: The Fourth Amendment and Police Violence, Coercion and Control"
- Katherine Mims Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. ___ (forthcoming, 2021), available at SSRN;
- Katherine Mims Crocker, Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L.J. ___ (forthcoming, 2022), available at SSRN.
Proferred solutions to the problem of police misconduct have coalesced around qualified immunity—government officials (not only police officers, although that has been the focus of the current political moment) cannot be liable for damages unless it was clearly established by judicial precedent that the officer’s conduct violated the Constitution, such that all reasonable officers would have known their conduct was unlawful. Scholars, justices, judges, and members of Congress have argued for eliminating the defense. And qualified immunity makes an easy target for reform by reference to cases involving prisoners locked in cells containing raw sewage or officers who stole cash and coins while executing a search warrant.
Katherine Mims Crocker offers a different approach. In two related articles that connect to a broader “panoramic view” of the system of constitutional-tort litigation—Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity and Qualified Immunity, Sovereign Immunity, and Systemic Reform—Crocker argues that the key to government accountability for constitutional wrongs lies in eliminating sovereign immunity and expanding the liability of government entities, rather than a pinpoint focus on eliminating qualified immunity (although she agrees the latter should happen). Continue reading "The Paths to Comprehensive Entity Liability in Constitutional Litigation"
Katheleen Guzman, Wills Speak
, 85 Brook. L. Rev.
Interim Dean (Dean) Katheleen Guzman explores the pre-death relevance of a will by determining whether or when a will speaks. She analyzes the legal consequences of a validly executed will before death and the potential property rights of devisees of the will. The focus and thesis of the article reminded me of the adage, “if the tree falls forest and no one hears, does it make a sound?” In translation, I thought, “Does a will make a sound (have a legal effect) if it is never probated?”
As professors, we typically teach that wills are testamentary documents that have no effect until after the death of a testator and probate by the court. Dean Guzman challenges this perspective of the law by exploring the pre-death effect of a will. First, she makes a distinction between property rights and expectancies by comparing deeds to wills. While adding a name to a deed makes a present transfer of property, adding a name to a will may transfer property in the future. Because the will does not currently transfer property, the named devisee has an expectancy, which is not the equivalent of a present or future property interest. Continue reading "If a Will is Never Probated, does it Make a Sound?"
Catherine M. Sharkey, Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms
, 70 DePaul L. Rev.
__ (forthcoming, 2021), available at SSRN
More than a hundred years ago, in Mitchell v. Rochester Railway Co., 151 N.Y. 107, 108 (1896), New York’s highest Court denied recovery to a plaintiff who had being negligently charged by a team of horses. Although the plaintiff was rendered unconscious and suffered a miscarriage, the Court held that she could not recover for “mere fright.” The court excluded recovery even though the team of horses “came so close to the plaintiff that she stood between the horses’ heads when they were stopped.” (P. 108.) The court reasoned: cases had not historically allowed recovery for fright or shock; if recovery were established “it would naturally result in a flood of litigation… a wide field would be opened for fictitious or speculative claims”; and “damages were too remote.” Today, notwithstanding these historical worries, most authorities would permit recovery on the Mitchell line of facts.
In her important article, Public Nuisance as a Modern Business Tort: A New Unified Framework for Liability for Economic Harms, Professor Cathy Sharkey invites readers to question whether nonliability for economic loss, and courts’ similar rationales, should also go the way of horse and buggy. Sharkey suggests “the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that societal harms of the 21st century involve risky conduct leading to purely financial harms.” (P. 3.) In particular, Sharkey focuses her attention on the public nuisance tort. Are authorities right to specifically permit liability in public nuisance cases while generally limiting liability for negligently caused economic loss? Are they right to focus on liability limitation as their exclusive policy concern in both the public nuisance and economic loss space? Continue reading "Leaving the Horse and Buggy Days of Limited Recovery for Economic Loss"
Too much of a good thing can sometimes be not so good. A case in point is reliance on optimal income tax scholarship, dating back to James Mirrlees’ Nobel Prize-winning work, to treat the generally assumed declining marginal utility of income as the only reason (apart from egalitarian preferences) for favoring progressive tax and other fiscal policies. As I wrote in a recent book (Literature and Inequality): “Declining marginal utility is important, but it falls far short of capturing the full significance and effects of … inequality in human society. We are not just isolated consumers, growing increasingly more sated as we fill up on pizza slices, or ever more jaded as we push further towards the frontiers of fine living. Rather, we are an intensely social species, and often a rivalrous one, prone to measuring ourselves in terms of others, and often directly against others.” On that ground, if one believes (as I do) that extreme high-end inequality has pervasive adverse effects, one may reasonably support imposing tax burdens on the rich going well beyond those that would be deemed to have a positive net effect if one were focusing solely on the marginal utility of own consumption and leisure.
So far, so good. But while evaluating issues of class, tax scholars (myself included) have often given far too little distinct attention to issues of race. Poisonously entwined though class and race are in the United States, it has become ever clearer that “racial disparities [are not just] … economic inequalities in disguise.” Thus, we should not think that “if we address class issues, we can fix racism.”
Like class issues, race issues show both the inadequacy of declining marginal utility from own consumption as a full psychological (or normative) model, and the importance of status considerations to social behavior and preferences. Racism is not just about animus, but also about the impulse to feel that one is better than other people. Understanding the impact and implications of racial, no less than class, inequality requires a broad sociological inquiry. For U.S. racism today, I know of no better recently published starting point to such an inquiry than Isabel Wilkerson’s Caste: The Origins of Our Discontents. Continue reading "Race and Class in Tax Policy Scholarship"
Jeremy Waldron, Damned Lies
(Mar. 4, 2021), available on SSRN
Among the damage left in the wake of the Trump administration is the degradation of truth. Of course, Donald Trump is not the first president to lie. He has, however, been successful in his assault on many institutions that Americans trust to deliver facts. Trump’s lies about the election results not only left many of his supporters with a false view of reality, but also cast doubt on election officials, courts, and procedures designed to verify the votes. In his new essay, Damned Lies, Jeremy Waldron helps dissect and categorize lies. In the process, he illustrates the complex relationship lawyers have to truth. If Trump damaged democracy with his disregard for facts, what about the lawyers by his side? Should they be disciplined or simply condemned for their part? Waldron does not answer these questions but he provides those of us who are interested in them with a sophisticated way to approach the problem.
Waldron’s essay seeks to answer the central question, what makes a lie particularly toxic in public life. What, in his words, makes it a “damned lie”? Of course, there is a legal question lurking beneath his excursion into moral philosophy: What sort of lies should our legal system tolerate? Do lawyers have a greater obligation to the truth than others? When, if ever, is it okay for lawyers to lie? Continue reading "Liar Up"