Congressional Administration

Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. __ (forthcoming, 2019), available at SSRN.

In Congressional Administration of Foreign Affairs, Rebecca Ingber directly challenges deep-seated assumptions about presidential power in the field of foreign affairs. Her account should prompt a rethinking of reigning assumptions about presidential power over administration of domestic affairs as well.

Ingber demonstrates that Congress can shape the President’s foreign policy and national security policies without constraining the President directly or dictating the substantive terms of foreign policy, but rather by structuring and reorienting the decision-making processes and relative powers of executive branch actors. She argues that Congressional input on matters of foreign affairs is normatively desirable, but there are legal, constitutional, and political hurdles to Congress substantively mandating foreign policy. Congressional administration avoids these hurdles and, according to Ingber, actually can be more effective than direct confrontation with the President. Continue reading "Congressional Administration"

Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option

Democratic voters in America are currently witnessing a contest between three broad visions of the role of the federal government.  One vision is “democratic socialist” in nature and argues for governments to be the exclusive provider of a range of “core goods”—goods central to a life of full human dignity. This is a common theme of democratic socialist proposals on healthcare, for example.  Another vision is market-based: markets should continue to play a leading role and the role of government should be limited to supporting or at times subsidizing access to core goods by low-income earners. A third position is “democratic liberal” in character (or what Jospeh Stiglitz has called “progressive capitalist”). It argues that governments should guarantee universal access to core goods, but not necessarily through exclusive public provision. Instead, it suggests that governments should seek to achieve universal access to core goods in one of two ways: either through an appropriate mix of sticks and carrots for private providers (taxes and subsidies), or a mix of public and private provision.

Enter the idea of the “public option” outlined by Ganesh Sitaraman and Anne Alstott in The Public Option: they argue that the government should provide either a “competitive” or “baseline” public option for citizens wanting to access core goods such as healthcare, housing, education, or childcare. To this list, they also add services such as banking, retirement savings, credit reporting, public defense, and guaranteed employment. Continue reading "Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option"

New Courts, New Perspectives

  • Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution, __ Va. J. Int’l L. __ (forthcoming 2020), available at SSRN.
  • Will Moon, Delaware’s New Competition, __ Nw. U. L. Rev. __ (forthcoming 2020), available at SSRN.

Fascinating developments are afoot in other countries’ courts. Recent articles by Matthew Erie and Will Moon offer terrific insights into a variety of innovative developments in foreign business courts. These articles have implications for those interested in procedural innovation, the development of legal institutions, transnational governance, the international development and influence of the common law, the role of courts in establishing and maintaining the rule of law, and the role of U.S. courts in transnational litigation and as an international judicial leader.

Erie’s article describes the rise of “new legal hubs” (NLHs) across “Inter-Asia,” including in Hong Kong, China, Singapore, Dubai, and Kazakhstan. Erie defines an NLH “as a ‘one-stop shop’ for cross-border commercial-dispute resolution, often located in financial centers, promoted as an official policy by nondemocratic or hybrid [democratic and authoritarian] states.” NLHs have been established over the past few decades—some as recently as earlier this year. These new institutions establish courts in combination with arbitration centers and mediation services, often housed in the same state-of-the-art buildings. Continue reading "New Courts, New Perspectives"

What Tort Law Is

Gregory C. Keating, Is Tort Law “Private”?, in Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds.) (forthcoming Oxford University Press), available at SSRN.

Tort law is no stranger to controversy. What duty does an employer owe to children sickened by workplace carcinogens brought home on parents’ clothing? What damages appropriately punish actors for willful and malicious conduct, or for non-economic harm? How far should liability extend when actors make dangerous products available to others who, in turn, choose to use or abuse them? But all of these freighted disputes pale in comparison to the larger question—what is tort law, or perhaps, what is tort law for? Although the questions seem intractable, Greg Keating’s recent article, Is Tort Law “Private”?, methodically guides readers through the theoretical claims.

The dividing lines have been staked out for some time. The instrumentalist camp sees tort law as one of many means for achieving optimal deterrence. Meanwhile a “contemporary revival” of traditional views sees tort as private law. Professor Keating wastes no time dismantling both assessments. Private law theorists miss the extent to which “modern tort law emerged as a response to the law having accidental injury thrust upon it as a pressing problem.” (P. 2.) Moreover, tort law’s “core domain is not optional,” but instead “protects persons against various forms of impairment and interference by others as they go about their lives as members of civil society.” (Id.) Continue reading "What Tort Law Is"

Erie and Unfair Competition’s Long and Winding Road

In her excellent addition to the Akron Law Review’s intellectual property volume, The Erie/Sears/Compco Squeeze: Erie’s Effects on Unfair Competition and Trade Secret Law, Sharon Sandeen “tells the story of the efforts undertaken in the aftermath of Erie to fill the gaps it left in the law of unfair competition.” Sandeen is particularly interested in the effect of Erie on what I would describe as the non-trademark-related areas of unfair competition, and especially the failed efforts to broaden the Lanham Act to cover trade secrets or otherwise develop general federal unfair competition legislation.

The tale goes like this: Prior to the Supreme Court’s decision in Erie, federal courts developed a robust common law of unfair competition. Sandeen describes that law as general federal common law, though it is only through the lens of Erie that the “federal” part of that formulation stands out. Federal courts developing unfair competition law before Erie didn’t think they were developing a different law than were state courts, and as Sandeen illustrates, federal courts were considerably more active in this area than state courts. Those federal courts thought they were developing the law of unfair competition. Erie created substantial uncertainty by throwing the status of that body of law into doubt and threatening disuniformity as states developed their own bodies of unfair competition law. Disuniformity was a significant concern, particularly to large commercial entities doing business nationally. Reformers made a variety of efforts to solve that problem with federal unfair competition legislation, and as Sandeen describes in detail, they largely failed. The reasons for that failure shed some interesting light on the coherence of the category of unfair competition—a category that has evolved considerably over time. Continue reading "Erie and Unfair Competition’s Long and Winding Road"

Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option (Test)

Democratic voters in America are currently witnessing a contest between three broad visions of the role of the federal government. One vision is “democratic socialist” in nature and argues for governments to be the exclusive provider of a range of “core goods”—goods central to a life of full human dignity. This is a common theme of democratic socialist proposals on healthcare, for example. Another vision is market-based: markets should continue to play a leading role and the role of government should be limited to supporting or at times subsidizing access to core goods by low-income earners. A third position is “democratic liberal” in character (or what Jospeh Stiglitz has called “progressive capitalist”). It argues that governments should guarantee universal access to core goods, but not necessarily through exclusive public provision. Instead, it suggests that governments should seek to achieve universal access to core goods in one of two ways: either through an appropriate mix of sticks and carrots for private providers (taxes and subsidies), or a mix of public and private provision.

Enter the idea of the “public option” outlined by Ganesh Sitaraman and Anne Alstott in The Public Option: they argue that the government should provide either a “competitive” or “baseline” public option for citizens wanting to access core goods such as healthcare, housing, education, or childcare. To this list, they also add services such as banking, retirement savings, credit reporting, public defense, and guaranteed employment.

We have written elsewhere about how and why we support a democratic liberal approach over both a more full-blown democratic socialist or free-market approach to the provision of core goods. In short, we think it provides the best mix of dignity, freedom, and equality for all citizens and is the most realistic way of achieving universal access to a decent social minimum—by harnessing the strengths of both the state and markets.

In key respects, Sitaraman and Alstott are also democratic liberal in their approach (they are certainly progressive capitalists): they emphasize the role of both government and private markets in providing access to core goods and services. As they note, they do not “have blind faith in private public administration” or “private firms.” (P. 126.) Instead, they suggest that we must ask “which is the best form of administration given a particular context, history, and the nature of the task at hand.” (P. 126.) Continue reading "Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option (Test)"

Incapacity Push-Back

Sean M. Scott, Contractual Incapacity and the Americans with Disabilities Act, 123 Dickinson L. Rev. __ (forthcoming 2019), available at SSRN.

What happens when a set of longstanding common law assumptions meets an assertive and vigorous civil rights act? Professor Sean Scott examines this question in terms of contractual incapacity and the Americans with Disabilities Act (ADA) in her aptly titled Contractual Incapacity and the Americans with Disabilities Act. She confronts the standard application of the doctrine of contractual incapacity in view of the ADA’s wide-ranging aim of upsetting traditional notions of disability and impairment.

To combine these two antagonistic ideas—contractual incapacity and the ADA—Professor Scott first outlines the texts and ambitions of each. Next, she introduces these two unwilling dance partners to one another and demonstrates that particular aspects of the idea of contractual incapacity do in fact undermine both the ADA and the goals of the disability rights movement. She concludes with nudging. She gives the law a small push, suggesting that our legal imaginations might reconsider contractual incapacity against the demands of disability rights activists. It’s a powerful nudge, one which has implications for various populations, from developmentally disabled persons to elderly individuals with dementia. Continue reading "Incapacity Push-Back"

‘The Law of Good People’ and Corporate Law

Yuval Feldman’s book, The Law of Good People: Challenging States’ Ability to Regulate Human Behavior provides a thought-provoking framework to advance our understanding of how governments should deal with misconduct committed by normative citizens blinded by cognitive biases regarding their own ethicality. While it does not discuss corporate law, this novel framework can offer new insights on fundamental questions of corporate law, securities regulation, and corporate misconduct.

The dominant enforcement paradigm is based on the idea that governments deal with “bad people”—those pursuing their own self-interest—by setting prices or sanctions for misconduct. Feldman, however, draws on the neglected discipline of behavioral ethics to argue that many forms of “ordinary unethicality”—such as workplace discrimination, insurance fraud or tax evasion—are committed by “good people” blinded by self-serving processes such as self-deception, motivated reasoning, ethical dissonance, and moral disengagement. Feldman convincingly shows that the existing analysis of law enforcement misses an important category of good people who may violate legal norms without feeling immoral or thinking that they are indeed in violation of law. Continue reading "‘The Law of Good People’ and Corporate Law"

Rectifying “Mistaken” Applications of the Mistake Doctrine to Personal Injury Releases

When one enters into a contractual agreement with another, expectations are created on both sides. Party A expects to receive something from Party B, and Party B expects to receive something in return from Party A. When courts become involved in contractual disputes, ensuring the fulfillment of these expectations is often one of their primary goals. The pursuit of this goal, however, must be balanced against other contracts principles, particularly those related to defenses against the enforceability of contracts. Professor Grace Giesel explores the balance between expectations and enforceability in her recent thought-provoking article, A New Look at Contract Mistake Doctrine and Personal Injury Releases.

Professor Giesel’s article begins with an informative discussion about the terms typically included in a personal injury release agreement. In particular, she notes that such agreements often require the injured party to relinquish “claims for all injuries relating to the incident whether those injuries are known or unknown” (P. 542) and whether those injuries have presently developed or will develop in the future. When those unknown injuries manifest themselves after the execution and payment of the release agreement, parties seek to invoke the mistake doctrine to challenge the enforceability of the agreement in their efforts to recover for additional related injuries. As Professor Giesel argues, injured parties will have a steep uphill battle to successfully make a case for mutual or unilateral mistake under such circumstances. Continue reading "Rectifying “Mistaken” Applications of the Mistake Doctrine to Personal Injury Releases"

An Anti-Democratic Mix of Secrecy, Unaccountability, Technology, and Surveillance

Andrea Roth, “Spit and Acquit”: Prosecutors as Surveillance Entrepreneurs, 107 Cal. L. Rev. 405 (2019).

If you were asked to design a DNA database to help solve crimes in a democratic society, what features would you include?  Legislative debate about the desirability of such a database would be a start. Whether such a DNA database would be justified by a cost-benefit analysis, with all potentially affected constituents having had a voice in the process might be another consideration. Appropriations for this hypothetical database might be conditioned on regulations intended to safeguard against abuse, to protect civil liberties, and to avoid scientific errors. And the mass collection of DNA presumably would not continue without clear evidence of its public safety benefits.

The District Attorney in Orange County, California has maintained its own DNA database since 2007. And it exhibits none of these features, as Andrea Roth’s article demonstrates. While there has been some journalistic and scholarly attention to the Orange County District Attorney’s (OCDA) database, Professor Roth’s work is the first to rely upon original field research, including court observations, public records disclosures, and interviews with all kinds of people familiar with the program, including affected defendants. The piece is remarkable and fascinating, both in its particulars, and what it can tell us about the dangers of other programs that may bear resemblances to it. Continue reading "An Anti-Democratic Mix of Secrecy, Unaccountability, Technology, and Surveillance"

The Uses and Abuses of the Government’s Tools of Information Control

Nathan Cortez, Information Mischief Under the Trump Administration, 94 Chi.-Kent L. Rev. 315 (2019).

The government enjoys enormous capacities to collect, publish, and disseminate a vast array of data. In a healthy democracy, we hope and expect that the government will share that information to inform, encourage, and inspire the public’s debate and dialogue. Indeed, as Jack Balkin suggests, democratic states should aspire to be “information gourmets, information philanthropists, and information decentralizers.” Too often, however, the government instead skews or stifles the public’s discourse by manipulating data or by denying access to it.

Nathan Cortez adds to our understanding of these dangers by describing the government’s instruments of information control—what he calls “information mischief”—along with their uses and abuses. More specifically, Cortez identifies these tools to include stripping certain online data, terms, and topics from the public domain; abandoning data collection in key areas; censoring scientists and other data experts employed by the government; and invoking transparency as a pretext for declining to cite and rely on sound science (Cortez describes this as “weaponizing transparency”). Continue reading "The Uses and Abuses of the Government’s Tools of Information Control"