Neither State Nor Federal Law

David S. Rubenstein, Supremacy, Inc., 67 UCLA L. Rev. ___  (forthcoming 2020), available at SSRN.

Legal scholars have long noted that the federal government increasingly outsources once-deemed-core governmental services to private contractors.  Similarly, scholars have often noted that the scope of government-contractor immunity under Boyle v. United Technologies Corporation and its progeny has metastasized. David Rubenstein’s recent article pushes us to view with a critical eye how these two doctrines work in concert to preempt swaths of state law, all without congressional action.

Rubenstein begins with an overview of history of government outsourcing.  While outsourcing of government functions is as old as the Republic itself, Rubenstein identifies the post-Watergate era as the inflection point for outsourcing, which exploded under both the Reagan and Clinton administrations. While this process has led to a well-recognized loss of congressional control over federal-government processes, Rubenstein argues that it has led to a “leveling down” of state authority as well by (1) occupying areas of traditional state regulation, (2) undercutting spaces for cooperative federalism actions, and (3) outright federal preemption. Continue reading "Neither State Nor Federal Law"

Watch This Space: AI at the Border

Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8 Cambridge Int’l L. J. 305 (2019).

As scholars of immigration law have been busy digesting the firehose of law and policy changes shooting out of the Trump administration, the use of new technologies at the border has been proliferating. Petra Molnar’s new article, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, reminds us that we must begin to pay closer attention to these developments and how they are deployed and regulated. Building on her excellent report, Bots at the Gate, the article provides a timely and useful roadmap of the relevant technologies and their very real risks. Though in the end Molnar is more sanguine than I about the potential of human rights law to mediate these risks, she rings a crucially important warning bell that we would all do well to keep an ear out for over the roar of the firehose.

The article begins, as it should, with a basic description of the “class of technologies that assist or replace the judgment of human decision-makers.” Automated decision-making has the potential to impact adjudication processes and outcomes by the full range of immigration actors, from border patrol to immigration courts. But what technologies are contained within this category? Molnar lists four: artificial intelligence, machine learning, automated decision systems, and predictive analytics, describing them as technologies that can be taught and can learn. Along with the description, she raises the key concern about the opacity of how exactly these decisions are made. As Frank Pasquale and others have asked, what is in that algorithm? Bias, perhaps? Molnar makes the important connection between the literature that critically examines automated decision-making and immigration adjudication. She notes that these technologies present the same risks as human decision-makers: accountability, bias, discrimination, error, and transparency, reminding us not to be fooled by the algorithm’s veneer of scientific objectivity. Continue reading "Watch This Space: AI at the Border"

Disruptive Innovation Inside the Bounds of Law?

Charles Yablon writes mostly in fields adjacent to Professional Responsibility, such as civil procedure and jurisprudence. However, as a junior associate at a big law firm in the mid-1990s, I found his article on discovery abuse to be refreshingly clear-eyed and unsanctimonious about an ethical problem that was pervasive in my own practice. Ever since then, I have considered him as a kind of honorary legal ethics scholar. It was therefore with considerable interest that I noticed his new paper on providing legal assistance to clients in activities he refers to as “not quite legal.”

Permissible legal assistance to businesses in the emerging cannabis industry is becoming a popular CLE topic (I am presenting a seminar this summer entitled “High above Cayuga’s Waters?”). The discussion is usually framed around Model Rule 1.2(d), which states that a lawyer may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Even in a state in which medical or recreational use of cannabis products is permitted under state law, a dispensary or other business is still committing a serious federal felony of possession and distribution of a controlled substance. The on-again, off-again practice by the Justice Department of turning a blind eye to marijuana-related offenses in legal-use states raises an interesting jurisprudential issue. Yablon argues that the formal legal prohibition on the possession or sale or marijuana “should not be treated as the sole dispositive fact” regarding its legality. (P. 345.) Continue reading "Disruptive Innovation Inside the Bounds of Law?"

Brandeis, Hoover, and the Problem of Fair Trade in Interwar America

American Fair Trade is an impressive contribution to the burgeoning literature on the history of the American political economy, a literature energized since the 2008 financial crisis by the emergence of a new subfield known as the “history of capitalism.”

Sawyer’s subtitle alludes to her book’s primary themes: the interrelationship in the half century between 1890 and 1940 of proprietary capitalism, corporatism, and the ‘new competition.’ By proprietary capitalism, Sawyer means the large sector of the political economy that was dominated not by the tiny number of giant mass-production managerial firms that owned and operated their own marketing networks, such as Standard Oil and American Tobacco, but instead by the multitude of specialty-production proprietary firms that relied on distribution networks that they did not control. By corporatism, Sawyer means a political-economic regime in which trade associations representing proprietary firms joined together in a partnership with government regulatory agencies to institutionalize a “neo-Brandeisian” regulatory regime. (P. 260.) By legalizing inter-firm agreements that blocked retailers from undercutting manufacturer-set prices—agreements that she calls “codes of fair competition” (P. 2)—the new regulatory regime protected not only the reputation of the proprietary firm’s brands, but also the margin that it obtained from the retailers that marketed its wares. Continue reading "Brandeis, Hoover, and the Problem of Fair Trade in Interwar America"

Are The Rule of Law and the Rule by Law Really That Different?

Jeremy Waldron, Rule by Law: A Much Maligned Preposition, available at SSRN.

As Jeremy Waldron well states in his article, Rule by Law: A Much Maligned Preposition, “there are lots of tough questions surrounding this one little phrase–‘the rule of law.’” (P. 2.) There is indeed a lot of controversy surrounding this political ideal, this little phrase. And this controversy gets a lot more complicated when we change a little preposition in this little phrase and start to distinguish between the rule of law and the rule by law: the first, taken as a synonym of legality; the latter, a caricature of it. Waldron seeks to discuss it all, and to show that maybe the rule by law is a lot more demanding than it seems to be.

First, though, some definitions. Although it is impossible to arrive at a canonical definition, it is also safe to assume, for analytical purposes, that the rule of law is—contested as it might be, and broadly understood—one of the many values in (liberal) political morality, according to which people shall be governed by clear, stable, general norms; “a situation in which the government is subject to legal limitation and constraint.” (P. 18.) Contrasted to that, some take the rule by law to be a degraded version of this ideal; as Waldron states: “the use of law as a tool or instrument to serve the ends of power in an authoritarian regime.” (P. 3.) But is that warranted? Continue reading "Are The Rule of Law and the Rule by Law Really That Different?"

Remote Controls: Pushing the Boundaries of Asylum

A general consensus has formed that the status quo approach to the current refugee crisis isn’t working, even if there is little agreement on an alternative. UC San Diego sociologist David Scott FitzGerald’s excellent new book, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers, is the latest academic press book by a social scientist (following, for example, Alexander Betts and Paul Collier’s Refuge) to explain what’s wrong with the global institutional framework for refugees and to propose a better way.

Over eleven chapters, FitzGerald presents a trove of evidence showing how many Western states use law and policy to deter (or simply shut out) would-be asylum seekers. These legal policies creatively flout the spirit of international law, even as they walk a fine line between formal compliance and violation. FitzGerald argues that, whatever their legality under international or domestic law, these non-entrée policies, what he calls remote controls, violate principles of humanitarianism. He therefore argues that civil society—including NGOs, journalists, lawyers, academics, and other citizens—should mobilize to end them. Refuge Beyond Reach is an important contribution to the ongoing conversation about how the existing global international and domestic framework is addressing (and is perhaps responsible for) the current crisis. Continue reading "Remote Controls: Pushing the Boundaries of Asylum"

The Productivity Gains of Innovation Clusters

Enrico Moretti, The Effect of High-Tech Clusters on the Productivity of Top Inventors, NBER Working Paper No. 26270 (Sept. 2019), available at NBER.

Why do inventors increasingly locate near each other in metropolitan technology hubs like the Bay Area, Seattle, or Boston, despite the high costs of living in these areas? Just ten cities accounted for a remarkable 70% of computer science inventors in 2007. A leading view has been that “agglomeration economies” make researchers inside these innovation clusters more productive, although measuring this effect is difficult. In his new working paper, economist Enrico Moretti examines the location of U.S. patent inventors over time to estimate just how large these productivity gains are: If inventors were distributed uniformly across the United States, Moretti estimates that their overall patenting rate would decline by 11%.

I like this paper (lots) not because the result is counterintuitive—quite the opposite. Rather, in a field with so many barriers to real empirical progress, it is worth celebrating work that attempts to rigorously understand what factors actually affect innovation. And Moretti’s work on the geography of innovation has important lessons for law and policy scholars, including about the importance of looking outside IP for evidence-based innovation policies and the complex connection between innovation and growing wage inequality. Continue reading "The Productivity Gains of Innovation Clusters"

Communication, Knowledge Sharing and Danger Assessments: Key Factors in the Prevention of Domestic Violence Fatalities

Were I to describe Rachel Louise Snyder’s new book – No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us – in three words they would be: comprehensive, concrete, and captivating.

No Visible Bruises offers a truly comprehensive exploration of the problem of domestic violence and our socio-legal responses to it. The book is framed around key stories and insights from victims and perpetrators, law enforcement, and academics and advocates who have worked to reform social and legal responses to intimate partner violence. The book convincingly demonstrates the systemic nature of the problem in part because it is so comprehensive in its assessment of the issue. Snyder draws connections between the pervasive and silent character of domestic violence and the economy, education systems, social stigma, sexism and intergenerational abuse. Using specific examples like family justice centers, multidisciplinary high risk response teams, batterer intervention programs, police protocols, researchers and fatality review teams No Visible Bruises canvasses the past several decades of reform to socio-legal responses to domestic violence. Snyder traces the history of the movement to reform how law enforcement, social workers and courts address domestic violence and examines how these efforts take shape today. Continue reading "Communication, Knowledge Sharing and Danger Assessments: Key Factors in the Prevention of Domestic Violence Fatalities"

Medicare Reimbursement for Prescription Drugs: An Overlooked Policy Lever for Innovation

Mark A. Lemley, Lisa Larrimore Ouelette, and Rachel Sachs, The Medicare Innovation Subsidy, N.Y.U. L. Rev. (forthcoming 2020), available at SSRN.

Over the past few decades, policymakers have used Medicare reimbursement policy to achieve wide-ranging changes in the health care system. Recent efforts have focused on using the levers of Medicare payments to encourage innovation in providers’ organizational structures and health care delivery. In their forthcoming article The Medicare Innovation Subsidy, Lemley, Ouellette, and Sachs consider another type of innovation influenced by Medicare reimbursement – innovation in the pharmaceutical market.

Both the Trump Administration and members of Congress have put forth various proposals to address high prescription drug costs in the Medicare program. In addition, some Democrats have advanced health reform proposals that would broaden insurance coverage for prescription drugs and lower patients’ out-of-pocket drug spending. While debates over these proposals have largely focused on the policy goals of lowering prescription drug costs and increasing access, Lemley et al. argue that attention also should be given to how these proposals impact incentives for developing new drugs. Specifically, the authors argue that health insurance coverage changes market demand for prescription drugs, thereby impacting drug manufacturers’ profits and their financial incentives to innovate. Continue reading "Medicare Reimbursement for Prescription Drugs: An Overlooked Policy Lever for Innovation"

The Surface State

Ryan M. Scoville, Unqualified Ambassadors, 69 Duke L.J. 71 (2019).

Administrative law commentary often fixates on the White House—specifically, on presidential directives to agencies. Presidents, however, often wield more control by picking agency leaders, as David Barron smartly pointed out over a decade ago. In the years since, while legal scholars have paid considerable attention to judicial picks, they have largely neglected agency appointees. Ryan Scoville’s Unqualified Ambassadors provides a deeply needed look at the people selected to lead our embassies abroad.

Scoville compiled (and has made freely available online) an astounding amount of information on close to 2000 ambassadorial nominees to sovereign countries from 1980 to 2018. These ambassadors serve both as diplomats and as CEOs of U.S. efforts in a particular country. Despite considerable presidential control in this area, Scoville argues that these leaders “remain as vital contributors to a successful foreign policy.” He obtained some information from the Obama Administration, which, starting in 2014, publicly provided “certificates of demonstrated competency” for each ambassadorial nominee. (Congress then codified the practice.) For the remaining 34 years of data, Scoville turned to FOIA requests. He is the rare scholar who has sued to get needed information for his article. Continue reading "The Surface State"

Discovery and the Limits of Transsubstantivity

Diego A. Zambrano, Discovery as Regulation, 118 Mich. L. Rev. ___ (forthcoming 2020), available at SSRN.

Discovery is an instrument of litigation. It is thus unsurprising that most of the scholarship about discovery is itself instrumental–how to make it better or how to explain why it is not so bad. As Diego Zambrano argues in his forthcoming article, however, focusing on such questions misses the larger opportunity to interrogate the foundational purposes of discovery and to use these principles to shape the rules and practices of discovery. Zambrano’s article is a pathbreaking investigation of discovery as a process and an end in itself, rather than as a means to the “fairness-accuracy-settlement” model in which the “right” discovery rules match a commentator’s particular view about the values and purposes of litigation.

Zambrano uses private enforcement actions as his vehicle for taking a fresh look at the theories and principles behind discovery.  Private enforcement lawsuits are those in which “Congress deliberately employs private litigants as the main method of statutory enforcement.” This allows him to work with  the decades of research and arguments about the private lawsuits as key means of enforcing public law regimes.  Once we accept that lawsuits are a form of regulation, it seems quaint to limit discussions of discovery to the relative burdens and merits that discovery serves within a lawsuit. Rather, discovery is an independent regulatory tool, albeit a tool housed within private civil litigation rather than in a public administrative or regulatory body. Zambrano’s insight ties these arguments to specific regulatory mechanisms that can be replicated in or adapted to discovery—namely, the subpoena power of many administrative agencies. He argues that “[w]hether discovery costs are too high should depend less on a case’s amount in controversy and more on whether the case generates proportional regulatory benefits and fewer costs than a comparable agency investigation.” Continue reading "Discovery and the Limits of Transsubstantivity"