Decision-Making in the Dark

Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. __ (forthcoming 2020), available at SSRN.
Ryan Azad

Ryan Azad

Among the hallmarks of our federal court system are judicial opinions. Federal judges do not just bang their gavels and declare a winner—their decisions are memorialized in published opinions that recount the facts of the case, lay out the relevant legal framework, grapple with the parties’ arguments, and explain why the law supports one side’s contentions over the other’s. These opinions are released not just to the parties, but to the public—allowing law students, legal commentators, and appellate courts alike to scrutinize and critique the court’s reasoning.

At least that is how it used to be. As Merritt McAlister highlights in “Downright Indifference, the vast majority of federal cases today are decided in “unpublished opinions.” That term describes any opinion that a court deems nonprecedential. But the distinguishing feature of unpublished opinions is their brevity. Because these cases involve routine issues resolved by settled precedent, the theory goes, courts need not expend resources to issue reasoned opinions that respond to the parties’ arguments. Instead, unpublished opinions succinctly explain—often in just a few sentences—who won and who lost. Continue reading "Decision-Making in the Dark"

Standing In Front of the Refrigerator

Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. __ (forthcoming 2019), available at SSRN.

“It is hard to sketch a river while sailing midstream,” says Jeff Pojanowski, as he begins an article that does a remarkable job of doing just that. Pojanowski’s forthcoming article offers an illuminating taxonomy of a vast array of administrative law theory and scholarship concerning the question of judicial review of agency action, which he organizes into three overarching frameworks or models. After sketching the river with aplomb, Pojanowski introduces us to a fourth model—“neoclassical administrative law”—and explains what the neoclassical framework would offer that earlier models lack. There, the image that might come to mind is not so much gazing at a river, but staring at a refrigerator. It is hard to decide what to have for dinner while standing in front of the refrigerator. A buffet’s worth of pretty good leftovers is probably sitting right there—but sometimes, to really hit the spot, you just have to roll up your sleeves and make something new anyway.

Pojanowski begins by noting the well-known “cracks” in the “comfortable, overlapping consensus” (P.3) of administrative law, including from academics and from the Court. Conventional administrative law doctrine is “under fire for being both too timid and too intrusive.” (P. 4.) Something new seems needed—but before getting to that new framework, Pojanowski presents a detailed sketch of three extant models. Continue reading "Standing In Front of the Refrigerator"

Ghosts in the Shell

Our understanding of work and workers is significantly enriched by immersive accounts of particular occupations and the people in them. Books like Studs Terkel’s Working, Barbara Ehrenreich’s Nickel and Dimed, and John Bowe’s Nobodies offer powerful narratives of day-to-day hopes, struggles, and indignities of workers in particular industries and milieu. The rhythms of the gig economy are unfamiliar to those in more traditional workplaces, and we are fortunate to have insightful new perspectives on these jobs: Alex Rosenblat on ride-sharing drivers; Karen Levy on truck drivers with electronic logging devices; and Casey Newton on social media content moderators. Add to this list perhaps the most mysterious, hidden form of new labor in our wired economy: the piecemeal “microwork” that facilitates online algorithmic processing.

In Ghost Work, anthropologist Mary Gray and computational social scientist Siddharth Suri—both researchers at Microsoft—have accomplished a deep dive into the world of these online crowdworkers. Although Gray and Suri at times include all sorts of platform workers within their definition, the true heart of the term “ghost work” applies to unseen AI support staffers who provide vital components of human judgment within an overall computational algorithm. As Ghost Work makes clear, key leaps in artificial intelligence capability have been possible only with an army of facilitators who make decisions such as what a camelback couch looks like, whether a face matches an ID picture, or how a slang term is used. Unlike the popular conception of indomitable machines churning through data unaided, most machine learning systems still incorporate significant human decision-making for the “last mile” of AI functionality. These are the people who make those decisions. Continue reading "Ghosts in the Shell"

A Do-Over for the Tax Unit

Margherita Borella, Mariacristina De Nardi, and Fang Yang, Are Marriage-Related Taxes and Social Security Benefits Holding Back Female Labor Supply?, NBER Working Paper No. 26097 (July 23, 2019), available at SSRN.

There has been a surge in empirical literature examining gendered patterns of behavior and outcomes across numerous economic contexts, especially choices within and across families. Relatively little of it has focused explicitly on how the basic structure of our tax laws interacts with and influences such choices. Encouragingly, a recent working paper by Margherita Borella, Mariacristina De Nardi, and Fang Yang does exactly that.

Borella, De Nardi, and Yang (BD&Y) study two key policies within the U.S. tax-transfer system: joint income tax filing for married couples and access to Social Security benefits for spouses. The joint income tax filing rule means that a married secondary earner will owe income tax at the marginal rate established by “stacking” her income on her spouse’s income, which generally is a higher rate than would apply if the secondary earner was single. Social Security benefits also increase to account for an earner’s spouse, but do not increase to account for an earner’s unmarried partner. Continue reading "A Do-Over for the Tax Unit"

Compensating Distress With A Stiff Upper Lip

Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).

Tort compensation is often said to be governed by the make-whole principle – damages should compensate the successful plaintiff for all the losses she suffered as a result of the tort. Even if there is such a principle, it seems to have exceptions. In Rationalising Recovery for Emotional Harm in Tort Law, Eric Descheemaeker focuses on an apparent exception that applies to suits for interferences with possessory rights. For example, in standard cases of conversion, the plaintiff is not entitled to recover compensation for emotional distress caused by the wrongful interference with her property rights. Examining English authorities, Descheemaeker offers a surprising result. Although courts purport to disallow distress damages in these cases, they actually do allow them. English tort law is more principled in hewing to the make-whole ideal than it appears to be.

Rationalising Recovery is not in the first instance concerned with the question of when emotional distress serves as a “predicate injury” – i.e., the injury that the defendant was duty-bound to avoid causing.1 Nor is it concerned with cases in which the plaintiff sues for having been made to suffer the sort of psychiatric injury that, under English law, is treated as a personal injury on par with a broken leg. Rather, it focuses on the availability of “parasitic” emotional distress damages – compensation for fear, horror, grief, anger, frustration, worry, or other negative emotions arising out of a distinct injury that grounds the victim’s tort claim. Continue reading "Compensating Distress With A Stiff Upper Lip"

Military Algorithms and the Virtues of Transparency

Ashley S. Deeks, Predicting Enemies, 104 Va. L. Rev. 1529 (2018).

For all the justifiable concern in recent years directed toward the prospect of autonomous weapons, other military uses of automation may be more imminent and more widespread. In Predicting Enemies, Ashley Deeks highlights how the U.S. military may deploy algorithms in armed conflicts to determine who should be detained and for how long, and who may be targeted. Part of the reason Deeks predicts these near-term uses of algorithms is that the military has models: algorithms and machine-learning applications currently used in the domestic criminal justice and policing contexts. The idea of such algorithms being employed as blueprints may cause heartburn. Their use domestically has prompted multiple lines of critique about, for example, biases in data and lack of transparency. Deeks recognizes those concerns and even intensifies them. She argues that concerns about the use of algorithms are exacerbated in the military context because of the “double black box”—“an ‘algorithmic black box’ inside what many in the public conceive of as the ‘operational black box’ of the military” (P. 1537)—that hampers oversight.

Predicting Enemies makes an important contribution by combining the identification of likely military uses of algorithms with trenchant critiques drawn from the same sphere as the algorithmic models themselves. Deeks is persuasive in her arguments about the problems associated with military deployment of algorithms, but she doesn’t rest there. She argues that the U.S. military should learn from the blowback it suffered after trying to maintain secrecy over post-9/11 operations, and instead pursue “strategic transparency” about its use of algorithms. (P. 1587.) Strategic transparency, as she envisions it, is an important and achievable step, though likely still insufficient to remedy all of the concerns with military deployment of algorithms. Continue reading "Military Algorithms and the Virtues of Transparency"

“Takings” from the Community

Yxta Maya Murray, The Takings Clause of Boyle Heights, 43 N.Y.U. Rev. L. & Soc. Change 109 (2019).

That the Constitution ensures that private property will not be taken by the government except for a public use and then only with just compensation is one of those principles learned in high school civics class. But, what is this “property” covered by the Fifth Amendment? It is not defined in the Constitution; rather the Supreme Court has stated that the term finds its contours and limits in state law, not under the federal constitution, and then only that which has been recognized and affirmed over the ages by custom, state statutes and judicial pronouncements.

Legal theorists often say that property is about the power of exclusion, by an “owner,” that is, one who holds “title,” as acquired through various established ways—voluntary transfer, inheritance, adverse possession. There are, to be sure, respected alternative theories recognizing property “rights” which are not necessarily founded on “ownership”—such as personhood and expectations and reliance on government benefits. In a recent article, Professor Yxta Maya Murray, describes a novel theory of property held by residents of Boyle Heights, a Los Angeles neighborhood, which she calls the “Boyle Heights property jurisprudence” that appears grounded in their collective experiences in the community. Continue reading "“Takings” from the Community"

Equality for Whom? The Curious Case of RBG’s Equality and Morales-Santana’s Nationality

Tracy A. Thomas, Leveling Down Gender Equality, 42 Harv. Women’s L.J. 177 (2019).

Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.

Morales-Santana was decided in the second year of the Trump administration and in the wake of its anti-immigration policy. Born in 1962 in the Dominican Republic to an unwed American citizen father of Puerto Rican origin and a Dominican Republic citizen mother, the plaintiff Luis Morales-Santana had lived in the United States since he was thirteen. The INA’s requirement of derivative citizenship for children born overseas to one American citizen parent in effect at Morales-Santana’s birth adopted a gender- and marital-status-based distinction by setting a longer physical presence requirement for citizen fathers and shorter physical presence requirement for unwed citizen mothers. Morales-Santana was not qualified for citizenship because his father had failed to meet the INA’s physical presence requirement for unwed fathers by a matter of days, and was to be deported as a non-citizen with several convictions. His father, however, would have satisfied, if female, the lesser stringent requirement for unwed citizen mothers to transfer derivative citizenship. Morales-Santana claimed that the INA’s gender-based distinction was a violation of gender equality, and requested that the rule for unwed citizen mothers be applied to him and that he be granted American citizenship. Continue reading "Equality for Whom? The Curious Case of RBG’s Equality and Morales-Santana’s Nationality"

Corporate Law as Law

Corporate law has a short historical memory. One result is that conceptual battles that go nowhere get refought, as a look at much of the literature generated in the wake of Citizens United will confirm. There are a few historical classics in the academic literature though. The lead publication in this short stack is Harold Marsh’s Are Directors Trustees? Conflicts of Interest and Corporate Morality, published in The Business Lawyer in 1966. Marsh told a stark story about the decline of the duty of loyalty, which he said went from flat prohibition of self-dealing transactions in 1880 to a general permission subject to judicial fairness review in 1960. Norwood Beveridge challenged Marsh’s description of the early period in a couple of papers published in the 1990s, but the Marsh account has held its place.

Now comes LSE’s (London School of Economics) David Kershaw with a masterful comparative history of corporate fiduciary law in the United States and the United Kingdom, The Foundations of Anglo-American Corporate Fiduciary Law. (The book’s introduction is posted here.) Kershaw seconds Beveridge and dispatches Marsh in a splendid account. The comparison holds the key. Yes, the UK had a prohibition that could be relaxed with a shareholder vote, a prohibition that found its way into the law of a number of US states. But what worked in the UK proved dysfunctional in the US. The conceptual framework of UK corporation law came from partnership, while the US framework came from legislated incorporations. Where the UK had default rules, the US had mandates, with the result that the self-dealing prohibition really was a prohibition here where it was not in the UK. Meanwhile, many states never adopted it and, analogizing to trust law, let officers and directors contract with the company subject to approval by a disinterested director majority. Continue reading "Corporate Law as Law"

Crowd-Sourcing Decolonization

Tendaye Achiume, Migration As Decolonization, 71 Stan. L. Rev. 1509 (2019).

At last—an article that squarely confronts the unquestioned authority of nation states to exclude economic migrants, and that moves the discussion beyond the red cape of open borders. Tendayi Achiume deconstructs the stone foundations of sovereignty in her ambitious and thought-provoking article, Migration as Decolonization.

Above the fever pitch of international debate surrounding global migration, one truth seems unassailable: that it is the prerogative of the sovereign state to exclude economic migrants. Faced with this unbreachable barrier, the battle around immigration moves elsewhere, pitched instead around how broadly to define the categories of those privileged to cross international borders—which citizens, residents, workers, humanitarian refuge-seekers, among others. Separated from the sound and fury of this debate is a silence around when purely economic migrants—“those who enter the territory of a foreign state in order to pursue better life outcomes”—have any legal claim to cross borders.

Achiume’s thesis is that the process of decolonization, which is ensnared in inequitable neocolonial relationships, must continue through the right of individual self-determination through economic migration. This right has boundaries. It belongs to individuals from nations subjected to the inequity-producing rules and institutions of colonization, who seek to better themselves within nations that hold “colonial advantage” over the country from which the individual originates. The journey to this conclusion takes three moves. Continue reading "Crowd-Sourcing Decolonization"

The Negotiation Class Action

Francis E. McGovern & William B. Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41 (June 13, 2019), available at SSRN.

A common criticism of modern academic legal writing is its lack of usefulness in the real world of practice. A common criticism of writing directed toward solving workaday legal problems is its lack of theoretical sophistication. Neither of these criticisms can be levied against the new paper by Francis McGovern, a Special Master in the National Prescription Opiate Litigation multidistrict litigation (MDL), and William Rubenstein, a consulting expert to the MDL court. The paper is dazzlingly conceived, and Judge Dan Polster, who is presiding over the Opiate MDL, has employed the proposal and its reasoning to find a solution to one of today’s most intractable mass torts.

The proposal harnesses Rule 23 to a new purpose: to create a class action designed specifically to negotiate a settlement. Today class actions are certified to litigate claims and, more controversially, to settle them. But this proposal is different. It forms a class around a specific settlement structure, in advance of negotiating the settlement itself; in effect, without knowing whether the defendants will settle or for how much, the class agrees about how the proceeds of a possible settlement will be distributed among class members. Class members have a right to opt out once the structure is known, so those dissatisfied with the proposed distribution plan may exit and the defendants may know in advance of negotiations what the binding effect of the settlement will be. Should a settlement be achieved, class members, who at this point will know what their share of the settlement will be, then vote to approve or reject the settlement, with approval requiring the favorable vote of a supermajority. Class members also retain rights to object to the settlement before the judge decides whether to approve it. Continue reading "The Negotiation Class Action"