Getting Reacquainted with Constitutional Torts

Richard Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Cal. L. Rev. 933 (2019)).

Richard H. Fallon, Jr.’s Bidding Farewell to Constitutional Torts is an important article at many levels. The provision by a leading constitutional scholar of a thoughtful and rigorous overview of the field, recent Supreme Court decisions within it, and new trains of scholarship criticizing those decisions is itself of great value. But there is much more here, and some of it is surprising. One might have expected a robust defender of the rule of law such as Fallon1 to excoriate the Supreme Court’s repeated expressions of skepticism about the principle that “where there’s a right, there is a remedy.” Instead, Fallon shares much of the Court’s skepticism and, in principle, shares its view that, in a range of scenarios, it is sensible to permit anticipated social costs to defeat the ability of victims of constitutional rights violations to hold those who have victimized them accountable. While the article ultimately defends the landmark Bivens decision itself, and a certain notion of state accountability to victims before courts of law, this too is something of a surprise in a piece purporting to “bid farewell” to the entire field.

In a manner consistent with his sensitivity to a range of constraints on legal interpretation, Fallon subdivides his article into three parts: (1) a doctrinal descriptive section; (2) the articulation of normative considerations relevant to the establishment of an attractive framework of liability rules for government actors and a proposal for such a framework; and (3) an analysis of which institutions are well-suited to adopt and implement that framework. Each of these inquiries is thoughtful, defensible, and important. Continue reading "Getting Reacquainted with Constitutional Torts"

Reckoning with Slavery

Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79 (2020).

Slavery is deeply imbedded in our nation’s history, economy, and law. The legacy of slavery is readily apparent in the disproportionate poverty of people of color and the new Jim Crow regime in our nation’s criminal justice system. Yet our country has never engaged in any sort of reconciliation process, let alone a reparation process. Recent years, however, have been marked by attempts to reckon with the history and legacy of slavery in the United States. In southern cities, local officials are debating whether to remove statues of confederate officials from public spaces. Those statues symbolize, and arguably celebrate, our nation’s legacy of slavery and racial discrimination. Removing the statues may ease the dignitary harm they cause but mask the ongoing impact of the legacy that the statues represent. In Citing Slavery, Justin Simard reveals how the legacy of slavery in our common law is hidden in plain sight. Lawyers and legal scholars know the legacy of slavery in our society but have failed to confront its impact on our common law.

Historians and legal scholars have been commemorating the 150th anniversary of the abolition of slavery and the establishment of fundamental rights for freed slaves during the Reconstruction Era. As part of this commemoration, historians are currently engaged in an ongoing debate over the extent to which slavery permeated our nation’s founding, and our constitution. In The New York Times, the 1619 Project commemorates the 400 years since the beginning of the slave trade in the U.S., fostering a debate over whether the focus on race sidelines the economic exploitation of the system of slavery. In Citing Slavery, Justin Simard makes a crucial contribution to the conversation about the impact and meaning of slavery on our legal system by pointing out the extent to which slavery permeates our nation’s basic principles of law. Like the confederate statues which force us to confront our past, Simard’s revelations force us to confront the question of how to treat law based on the tainted foundation of slavery. Continue reading "Reckoning with Slavery"

Avoidance Creep

Charlotte Garden, Avoidance Creep, __ U. Pa. L. Rev. __ (forthcoming 2020), available at SSRN

Professor Charlotte Garden already has a well-earned reputation as a leading scholar on the intersection of labor law and the First Amendment. This reputation will only be enhanced by her outstanding new article, Avoidance Creep. The article addresses a problem in labor law, and potentially other areas, involving the doctrine of “constitutional avoidance.” This doctrine provides that if one plausible reading of a statute would make its application violate the Constitution, but another plausible reading of the statute would not be unconstitutional if applied in that context, a court should, instead of ruling the statute unconstitutional, interpret the statute such that it does not violate the Constitution.

On its face, doctrine seems sensible. But Garden shows that it has been used to twist statutory language beyond its plain meaning and the intent of its drafters. Further, “avoidance creep” means that later courts amplify and magnify the original problems such that the interpretations are unmoored not only from statutory meaning and purpose but also from proper Constitutional analysis and from the defensible justifications for Constitutional avoidance. In her words, “avoidance decisions have tended to creep beyond their stated boundaries, as decision-makers either treat them as if they were constitutional precedent, or extend them into new statutory contexts while disregarding key aspects of their original reasoning.” Continue reading "Avoidance Creep"

Of Trusts, Grammar, and Gender

Deborah Gordon, Engendering Trust, 213 Wisc. L. Rev. 213 (2019), available at SSRN.

In her new piece, Engendering Trust, Deborah Gordon takes on the relationship between women, wealth, inheritance, and the trust form. This intricate relationship is a long-standing one—a vintage marriage, so to speak—defined by gendered asymmetries, assumptions, and characterizations that are all grounded in historical norms. The landscape that gives life to this relationship between women and the trust form is replete with overt female archetypes, such as evil stepmothers, acquisitive mistresses, and vulnerable widows, and the linguistic coin of the realm is a highly gendered grammar that reveals these and other idioms of financial authority, avarice, and inexperience.

Based on a study of 540 cases involving trust law disputes, Gordon seeks to unearth how courts speak about and incorporate gender in their writing and “where cases show trust law clinging to its gendered past, both in language and effect.” (P. 223.) More specifically, she looks at three “key trust characteristics” in the opinions order to parse the role of gender and its effects. First, Gordon looks at trustee identity and finds that not only do men create marital trusts more frequently than women, but men also name someone other than the surviving spouse as trustee more often than women do. Women, by this measure, have still not gained full access to the world of trusteeship, a world in which—in years gone by—“[a]lmost every well-to-do-man was a trustee.” Pursuing this line of inquiry, it would also be interesting to know who courts choose as trustees in cases requiring the court to appoint one. Continue reading "Of Trusts, Grammar, and Gender"

Against Punitive Approaches to Animal Protection

In the United States, we often rely on criminalization as a way (sometimes the only way) of communicating social value. We purport to communicate the value of those who are harmed or injured by criminalizing the conduct that harmed them and prosecuting those who engage in that conduct. In recent years, scholars who study the criminal legal system have raised questions about this carceral approach to communicating social value. These critics have argued that harsh, punitive approaches to social problems frequently fail to solve those problems, even as they reliably replicate old patterns of injustice and generate a host of unintended consequences. The criminal legal system may also produce carceral “solutions” at odds with the actual wishes of the individuals harmed by the criminalized conduct.

In Beyond Cages: Animal Law and Criminal Punishment, Justin Marceau applies this critique to the carceral turn within the animal protection movement. Marceau uses the term “animal protection movement” as an “imperfect shorthand” for the “disparate groups and philosophies” that make up a “multifaceted” movement. He notes that leaders of the movement “have made clear that carceral animal law policies are a critical strategic priority.” (P. 2.) He then proceeds to explore, in a systematic way, the accumulation of thirty years of “carceral animal law policies” in mainstream animal protection efforts. Continue reading "Against Punitive Approaches to Animal Protection"

Post-Koontz Exactions

Timothy M. Mulvaney, The State of Exactions, 61 Wm. & Mary L. Rev. 169 (2019).

Land-use regulation allows the government to condition approval of a land-use permit on the landowner’s surrender of a property interest (exaction) so long as there is an “essential nexus” and “rough proportionality” between the condition demanded and the anticipated impact of the proposed land use.  Professor Timothy Mulvaney has written extensively about the many legal and policy issues surrounding exactions and he continues to enlighten us in his new article, The State of Exactions.

Mulvaney reviewed the almost 130 cases in a five-year period that cited the Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District to illustrate the various ways in which lower courts have applied the Koontz holdings. Continue reading "Post-Koontz Exactions"

Parallel Universe Defaults

Gina Gail-Fletcher, Engineered Credit Default Swaps: Innovative or Manipulative?, NYU L. Rev. (2019).

Credit Default Swaps (CDS), like banks, are mind-blowingly simple and potent credit replication machines. Banks replicate their own credit—conjuring gobs of money out of thin air—with a license and a convoluted web of guarantees from the state. CDS can replicate anyone’s credit, with industry-coordinated standard contracts embedded in a tangle of carve-outs, safe harbors, and exemptions from statutes and regulations. The 2007-2009 financial crisis brought a heap of bad press and new regulatory requirements for CDS dealers and trading infrastructure, but did not fundamentally alter the contractual governance paradigm at the heart of this multi-trillion dollar market.

Opportunistic or downright slimy behavior in a space so carefully shielded from substantive regulation can be hard to diagnose, even when it poses an existential threat to the CDS market and could spill beyond it. Recent reports of bad behavior have prompted high-profile lawsuits, contract reforms, and a crop of law review articles revisiting contractual, statutory, and regulatory ecosystems for CDS.

The range of approaches reflects the multifaceted challenge, but can be confusing. Gina-Gail Fletcher’s analysis in Engineered Credit Default Swaps: Innovative or Manipulative? is thoughtful, comprehensive, and a good place to start. Continue reading "Parallel Universe Defaults"

Oyez! Robot

Richard M. Re & Alicia Solow-Niederman, Developing Artificially Intelligent Justice, 22 Stan. Tech. L. Rev. 242 (2019).

How and why does it matter that humans do things that machines might do instead, more quickly, consistently, productively, or economically? When and where should we care that robots might take our jobs, and what, if anything, might we do about that?

It is the law’s turn, and the law’s time, to face these questions. Richard Re and Alicia Solow-Niederman offer an excellent, pragmatic overview and framework for thinking about artificial intelligence (AI) in the courtroom. What if the judge is a (ro)bot? Continue reading "Oyez! Robot"

Writing Books Versus Journal Articles

Why write a book rather than journal articles? Insofar as we write for ourselves, it’s a function of the project. Some ideas for projects may best lend themselves to articles, but others may need to be book-length in terms of their scope. But we also write for other people, and one great thing about being an academic is that you have wide entrepreneurial choice regarding which audiences you wish to reach—be it in general, or project-by-project. There’s no right or wrong about it (well, maybe there are better and worse choices sometimes), any more than novels should all fit in a particular genre, or scientific research should restrict itself to a particular subject area or methodology. There’s also no right answer as between the aims of advancing knowledge, engaging in art for art’s sake, and attempting to improve the world—all of these enterprises have value, and of course they often overlap.

Two outstanding recent books by prominent tax economists—Kim Clausing and William Gale—show how attempting to improve the world can overlap with advancing the other goals noted above through clear, lucid, convincing explanation and analysis. For the most part, Clausing and Gale explain things that some people already know, in addition to passionately advancing viewpoints to which I am generally sympathetic, although of course not everything they say is wholly beyond debate. Both books reflect admirable project choices by scholars who have done important original research to focus on amalgamation and explanation this time around, in response to the bad place where our country is right now across multiple dimensions (not limited to current political headlines). Clausing and Gale successfully communicate an urgency that even hardcore art-for-art’s-sake devotees will respect and admire as showing the authors’ commitment to valuable public service. But the books are also very different, in ways that help to show the lack of any single formula for making signal contributions to our society and discourse as a public intellectual. Continue reading "Writing Books Versus Journal Articles"

Rethinking Uniformity in Statutory Interpretation

Ryan Doerfler, Can a Statute Have More Than One Meaning?, 94 N.Y.U. L. Rev. 213 (2019).

It is a persistent theme in statutory interpretation theory—one shared by textualists, purposivists, and intentionalists alike—that a statutory term must have the same meaning from case to case and from litigant to litigant. The word “knowingly” in the same statute cannot mean one thing as applied to Sally and another as to Jim. To hold otherwise, courts and scholars have agreed, would violate fundamental principles of fairness and stability and upend the rule of law. Yet in a provocative and compelling new article, Can a Statute Have More Than One Meaning?, Ryan Doerfler makes a convincing case for rethinking this conventional view and contemplating just such variability of meaning.

Like all of Doerfler’s work, the article is incredibly smart and forces one to think about statutory interpretation in a fresh and unorthodox manner. Building on the linguistic observation that speakers can and often do communicate different things to different audiences using the same words or written text, the article argues that there is no reason to assume that Congress does not do the same—and several reasons to assume that it does. Continue reading "Rethinking Uniformity in Statutory Interpretation"

Attention Supplicants

Ryan Copus, Statistical Precedent: Allocating Judicial Attention , __ Vand. L. Rev. __ (forthcoming 2020), available at SSRN.

Courts of Appeals in the United States are busy and, as numerous commentators and judges have pointed out, are unable to give many cases the attention they deserve. Attention supply and demand are currently grossly misaligned. Worse, there is little realistic hope of reducing the number of appeals or increasing the number of appellate judges. Appellate courts have responded by enlisting attention aids (e.g., more staff attorneys, more clerks), reducing attention commitments (e.g., fewer oral arguments, short and unpublished opinions), and reallocating attention from some types of cases to others.

These moves create numerous practical and normative problems. Perhaps most serious is that appellate judges systematically shortchange some types of cases (e.g., pro se, immigration, social security, and prisoner appeals) and lavish attention on other cases that have superficial markers of importance. Courts of appeals allocate their precious attention according to a cobbled-together set of proxies, heuristics, norms, historic practices, and shortcuts. None of this is to fault appellate judges; many seem unhappy with the current state of affairs and try their best with the limited resources that they have. But it is difficult to avoid the impression that the current hodgepodge of solutions is neither transparent nor efficient nor evenhanded.

Ryan Copus’ article is not the first to consider how courts can improve their ad hoc attention-triage systems, but he creatively pushes methodological boundaries to attack old problems from a fresh angle. He combines machine learning with an impressive dataset to answer how frequently appellate courts have reversed a particular type of case. Cases with low or high probabilities of reversal represent “easy” cases that typically merit little attention and are good candidates for a first look by staff attorneys. Cases in the middle represent “hard” cases that present opportunities to develop law and enhance predictability in the future. The article also uses traditional indicators of error to boost our confidence in the ability of the machine-learning-generated model to usefully predict error. Continue reading "Attention Supplicants"