The Next Steps in Criminal Justice Reform

A number of books and articles have taken aim at America’s mass incarceration debacle. Smart Decarceration, a multi-author edited volume, assumes that the tide has turned. As the editors point out in the first chapter, several states have begun depopulating their prisons, eliminating mandatory minima, and creating more alternatives to prison, a movement sometimes dubbed “Smart Sentencing.” Smart Decarceration is about the sequel. Authored by academics with degrees in criminology, sociology, history, public health and social work, as well as by leaders in community organization, practicing lawyers, pastors, and formerly incarcerated individuals, this book is devoted to picturing what optimal decarceration should look like.

The diverse perspectives provided in Smart Decarceration ensure a nuanced, multi-disciplinary treatment of that issue. But there is also an overriding agenda, perhaps best summarized by Kathryn Bocanegra in her chapter, when she states that “exclusively focusing on reducing prison populations without considering the sustainability of such an effort is potentially dangerous.” (P. 115.) Continue reading "The Next Steps in Criminal Justice Reform"

Vice-Presidents in Charge of Going to Jail

Stavros Gadinis and Amelia Miazad, The Hidden Power of Compliance (Feb. 14, 2018), available at SSRN.

In business and government, today, bureaucrat is a pejorative. Bureaucracy rather than being a mark of rationality is sneered at. Multi-disciplinary project teams, flat hierarchies and “intrapreneurship” are what corporate consultants prescribe. At least since Thatcher and Reagan, market mechanisms have been praised as superior to the civil service.

Yet, corporate legal regulation can only think in bureaucratic forms. In Europe, the GDPR requires a new C-suite member, the Chief Data Officer. In the U.S., executive, legislative and judicial actions, well described in this article, have resulted in “the explosive growth of compliance departments.” (P. 7.) In legal regulation, authority is vested at the top and liability at the top is thought to ensure compliance. As scandals occur because those at the top failed to confront problems, the law envisions new staffs being created so that the top of the bureaucracy can issue orders resolving the problems. Previous work has been skeptical of whether the development of compliance departments will lead to actual compliance. Gadinis and Miazad report on various law review articles in which “the harshest critics view compliance as a box-checking exercise, too formalistic.” (P. 2.) Others complain that those in the department won’t be able to “supervise their superiors.” (P. 2.) In other words, they will be inferior bureaucrats. Without being explicit about it, often using agency-cost theory, these law review articles apply the critique of bureaucracy so prevalent in our culture to criticize the organizational technique of compliance departments.

Gadinis and Miazad cut through these critiques and argue that the principal function of compliance departments is to put red flags in front of the board. One might quibble with this approach by emphasizing the educational function of compliance departments, improving how lower-level employees exercise their powers. But, in consonance with corporate law’s emphasis on power at the top, Gadinis and Miazad propose that whoever leads the compliance department (sometimes a Chief Legal Officer, but increasingly a Chief Compliance Officer) be in the C-suite and have clear lines of authority to communicate to the board. The threat of liability, they assume, will incentivize chief compliance officers to report to the board. Continue reading "Vice-Presidents in Charge of Going to Jail"

The Federal Trade Commission as National Nanny

Rachel Louise Moran, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019).

The new essay collection Shaped by the State: Toward a New Political History of the Twentieth Century, edited by Brent Cebul, Lily Geismer, and Mason B. Williams, makes a strong case for thinking about political history as deeply tied to broader strands in American history. The essays in the book describe the growth and evolution of the modern state in light of “long-standing structures and ideologies of markets and social power defined by race, gender, class, and hierarchies of citizenship.” (P. 8.) As the table of contents makes clear, regulation and the administrative state are key parts of this story of the modern state. Rachel Louise Moran’s contribution to the collection, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, approaches regulatory history in this expansive way, unpacking the gendered nature of both regulation and resistance.

Moran takes as her topic efforts by the Federal Trade Commission (FTC) in the late 1970s to limit children’s exposure to junk food advertising on television. One might assume that the FTC’s attempts to prevent greedy corporations from using sugar to entice children would make regulators the heroes in a modern fairy tale. Moran describes how in 1977 the Center for Science in the Public Interest “dramatically sent 170 decayed teeth (and petitions signed by ten thousand health professionals) in a bag to the Federal Trade Commission, along with a request the FTC regulate the advertising of foods to children.” (P. 320.) Instead, however, the 1978 Children’s Advertising Rule investigation–soon known as “KidVid”–collided with concerns about an overstepping state voiced by industry opponents, media skeptics, and parents protective of their own authority. Continue reading "The Federal Trade Commission as National Nanny"

The Impossibility of Simple Models of Impossibility in Contract Law

Uri Benoliel, The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis, __ Brooklyn L. Rev. __ (forthcoming), available at SSRN.

The use of theoretical economics to analyze legal rules faces a special challenge in contract law, particularly when applied to default rules rather than mandatory ones: it has to match up with what contracting parties are actually doing. One of the foundations of the economic analysis of contract law is that business parties ordinarily know what’s in their own best interests, so economic prescriptions about default, gap-filling rules are also ordinarily predictions: they are statements of what parties actually wanted but didn’t express or what they would have wanted if they had thought about a particular problem in advance.

Economic pronouncements about rules of contract law, therefore, are subject to a particular type of empirical verification unavailable in at least many other areas of law: we can simply look at what sophisticated business parties are doing and see if it matches up with what economists predict they will do. This is precisely what Uri Benoliel has been doing. And the result of his recent empirical study on the impossibility doctrine in contract law, The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis, bears out Grant Gilmore’s famous observation in The Ages of American Law that “no historian, social scientist, or legal theorist has ever succeeded in predicting anything.” Continue reading "The Impossibility of Simple Models of Impossibility in Contract Law"

The Supreme Court is Broke, the Question is How to Fix It: Alternatives to Term Limits

  • Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. ___ (forthcoming 2019), available at SSRN.
  • Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. ___ (forthcoming 2019), available at SSRN.

The Supreme Court is broken, or so holds an emerging consensus. From the Senate’s refusal to consider Judge Merrick Garland’s 2016 nomination to the Court to the contentious 2018 confirmation of Justice Brett Kavanaugh to a string of 5-4 decisions in politically salient cases, many entailing overruling of long-standing precedent and dividing along the party of the appointing President. All suggest an institution facing deep questions of legitimacy. That apparent consensus yields numerous suggestions to reform, and thus save, the Court.

One idea gaining traction in academic and political circles, across the ideological spectrum, entails eliminating life tenure in favor of some form of 18-year term limits on the Justices. Structures, details, and implementation vary, but the common idea is that a Justice would serve as part of the active nine-member Court for 18 years and a new Justice would be appointed every two years. Supporters believe this will reduce the political intensity surrounding any appointment, eliminate the fortuity of how many appointments a President gets and when, remove the incentive to appoint ever-younger Justices, and perhaps remove the Court as a campaign issue. Two forthcoming papers question this emerging wisdom. Term Limits and Turmoil: Roe v. Wade’s Whiplash empirically exposes the doctrinal costs of term limits; How to Save the Supreme Court proposes alternatives that avoid those doctrinal costs. Continue reading "The Supreme Court is Broke, the Question is How to Fix It: Alternatives to Term Limits"

A Broad and Sobering View of Constitutional Safeguards

Mariano-Florentino Cuéllar, From Doctrine to Safeguards in American Constitutional Democracy, 65 UCLA L. Rev. 1398 (2018).

The September 2018 volume of the UCLA Law Review is a must-read page-turner (or its equivalent for the digital age) for followers of JOTWELL’s Administrative Law section. That volume collects the written essays originally delivered as talks at the Law Review’s symposium on The Safeguards of our Constitutional Republic, organized by UCLA Professor Jon Michaels, along with his colleagues Professors Kristin Eichensehr and Blake Emerson. As Michaels writes in his introductory essay for the volume, “The first two years of the Trump presidency have been marked by scandals, standoffs, travesties, and tragedies. Customs have been flouted, compacts broken, laws transgressed, responsibilities ignored, and individuals and communities threatened and debased.” In their contributions for the symposium, participants—distinguished public law scholars and civic institutional leaders from different corners of the nation—collectively “explored whether we are in a time of simple flux or full-blown crisis; whether any such crisis rises to the level of a constitutional—as opposed to just a political or cultural—dislocation; and how we can steer the ship of State back on course.”

While readers would be rewarded for perusing all of the essays, the one I want to focus on here is Mariano-Florentino Cuéllar’s essay, From Doctrine to Safeguards in American Constitutional Democracy, which he presented as the keynote address at the symposium. Justice Cuéllar (on the Supreme Court of California since 2015, and before that a member of the Stanford Law School faculty) soberly cautions “against facile rule-of-law optimism” about “the prominent role of courts in setting constitutional constraints on official power.” (P. 1400.) While Justice Cuéllar rightly does not name President Trump in the essay (in fact, he alludes to the “[d]ilemma” of “a judge seeking to thread the needle at a UCLA symposium when alluding to transgressions of norms by elected officials” (P. 1422)), the animating concern of the essay resonates closely with contemporary challenges in the administrative state and our republic more generally. Whether the legal question centers on arbitrary-and-capricious review, statutory authority, or constitutional permissibility, judicial review of the Trump administration’s actions is a daily occurrence, in ways both familiar and breathtaking. Continue reading "A Broad and Sobering View of Constitutional Safeguards"

How We Regulate Wage Theft

Jennifer J. Lee & Annie Smith, Regulating Wage Theft, 94 Wash. U. L. Rev. __ (forthcoming 2019), available at SSRN.

How best to combat wage theft? In a new paper, Regulating Wage Theft, Jennifer Lee and Annie Smith join the debate with insights from an original hand-coded dataset of State and local anti-wage theft laws enacted from 2005 up through 2018. They know not only who enacted these laws and when, but also the strategies those laws use to combat wage theft. The upshot: Most such laws rely on worker complaints and other enforcement strategies that are less likely to succeed in preventing or redressing wage theft. But, in a few places here and there, the laws use strategies that may do a lot better, and thus are worth a closer look.

The paper’s core: a curated census of anti-wage-theft laws. Unlike past efforts, the paper covers enacted State and local laws over a longer time period. Lee and Smith searched generally in legal databases for laws regulating wage payment or information related to wage payment in every State, the District of Columbia, and the 30 most populous cities. They also scoured secondary sources and talked to worker centers and State departments of labor. They ignored such laws that only increased the minimum wage rate; addressed worker misclassification; required paid sick leave; made “only technical revisions” without “fundamentally” changing the enforcement regime; “would be considered pro-employer provisions”; only covered work performed pursuant to city contracts; or were “subsequently repealed, preempted by state statute, or otherwise invalidated” (Pp. 13-14). Continue reading "How We Regulate Wage Theft"

Personalizing Copyright Law Using Consumer Demographics

Adi Libson & Gideon Parchomovsky. Toward the Personalization of Copyright Law, 86 U. Chi. L. Rev.  527 (2019).

Most people assume, if implicitly, that there is a substantial element of uniformity in our IP system. At first blush, our copyright and patent laws extend a (presumably) uniform set of rights to (presumably) uniform authors and inventors, who can then sue (presumably) uniform unauthorized users. Scholarship for some time now has already noted that the bundle of rights is not actually uniform, and has theorized on the optimal tailoring of rights to particular industries and subject-matters. More recently the literature has started to unpack the implicit assumption of creator uniformity using data on the demographics of authors and inventors. Statistically speaking, the data has shown that creators of different races, genders and ages diverge in the rate and direction of their creative efforts. In this new and exciting article, Libson and Parchomovsky begin to unpack the assumption of user uniformity using user demographics.

Legal enforcement of copyrights entails benefits and costs. On the benefit side, it provides authors with an incentive to create, by securing to them the exclusive exploitation of their works. On the cost side, it reduces access to creative works, by endowing the author with a monopoly-like power. Optimally, copyrights would only be enforced against high value consumers (thus achieving the incentive rationale), but not against those with valuations lower than the market price (thus achieving the access rationale). In theory, allowing free access to those who cannot afford the market price would be efficient, as it would allow them access without sacrificing the author’s incentive. In practice, however, this cannot be done because many who are willing and able to pay would masquerade as ones who are not, and authors have no crystal ball to reveal consumer valuation. Copyright enforcement thus makes sure that those who can pay would, realizing that the access cost is borne as a necessary evil. Continue reading "Personalizing Copyright Law Using Consumer Demographics"

Bowie’s Gap

Nikolas Bowie, The Government-Could-Not-Work Doctrine, 105 Va. L. Rev. 1 (forthcoming, 2019), available at SSRN.

Without much fuss, writing with easy, accomplished clarity, Nikolas Bowie puts forward two striking ideas interacting dramatically in his article The Government-Could-Not-Work-Doctrine.

The first is advertised in the title of his article: The proposition that government is supposed to work is constitutional, Bowie stresses. It is itself a notion properly treated as of primary relevance in processes of bringing to bear other constitutional considerations. In particular, he asserts, government efforts ought ordinarily to win our respect if they declare their general applicability to be integral to their aims. Vaccination programs, we may especially appreciate these days, count as paradigm illustrations. Claims to exceptions, however deeply felt and honorably motivated, should not prevail absent directly pertinent, emphatically couched constitutional directives. “We cannot always be in every political majority.” (P. 62.) Individuals who resist general dictates should consider tactics founded in philosophies of civil disobedience. Bowie mobilizes, inter alia, Jesus of Nazareth, Mohandas Gandhi, and Martin Luther King, Jr. (P. 3). Continue reading "Bowie’s Gap"

The Nature of Judicial Power

Daniel M. Brinks & Abby Blass, The DNA of Constitutional Justice in Latin America (2018).

Scholarship on the exercise of judicial power often focuses on its nurture: how judges operate to protect their authority in a complex system of personal incentives, institutional constraints, and political uncertainty. In their recent book, The DNA of Constitutional Justice in Latin America (2018), Dan Brinks and Abby Blass instead focus on the nature of judicial power, producing a magisterial analysis of judicial design. They argue that a court’s formal institutional design can indicate the kind of political influence it was intended to exercise. And in so doing, they present a beautifully integrated theory complete with robust quantitative and qualitative empirical support.

The book aims to provide a “unifying political account of the origins of the different models of constitutional justice that have emerged in Latin America since the 1970s” (P. 2), and its conceptual contributions are limited to that set of countries. Nevertheless, Brinks and Blass develop a theory that has universal appeal, and scholars of global or regional constitutionalism in other geographic areas will benefit from reading and drawing on this work. Continue reading "The Nature of Judicial Power"

Waging War on Dynastic Wealth with a Wealth Tax

Nothing incites more dread in law students and professors than the words “Rules Against Perpetuities” (RAP).  As states continue to pass laws abolishing or effectively nullifying the doctrine, professors celebrate deleting this topic from their syllabi. Professor Kades demonstrates why, from a social policy perspective, society at large should dread the death of the RAP. In this article, he challenges this trend and demonstrates the negative consequences resulting from dynasty trusts, following the demise of the RAP.

Prof. Kades starts with a brief discussion of wealth and income inequality. Relying, in part, on Thomas Piketty’s research, Prof. Kades discusses how wealth inequality has a greater impact on wealth concentration than income inequality. His research supports the notion that wealth inequality has outpaced income inequity amongst the top wealth holders. He attributes this phenomenon, in part, to a mixture of wealthier individuals earning a higher rate of return on investments and their ability to save a larger part of their income. As inequality grows, individuals have more property to transfer via inheritance. Continue reading "Waging War on Dynastic Wealth with a Wealth Tax"