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Femtechnodystopia
Get PDFReproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral changes that support the health of the fetus. However, more nefarious actors also have interests in these technologies and the intimate information they contain. In the wrong hands, these tools can effectuate increased reproductive control and criminalization. What happens next will depend on whether we can improve efficacy, limit foreseeable privacy risks, and raise consumer awareness. But the current legal and regulatory landscape makes achieving these goals far from a straightforward proposition, further complicated by political influence and a conservative Supreme Court. Thus, this Article concludes with multiple solutions involving diverse stakeholders, offering that a multifaceted approach is needed to keep Femtech’s dystopian future from becoming a reality
Opinion: How Software Stifles Competition and Innovation
Get PDFInnovation is not what it used to be, and software is part of the reason. In many industries—industries well beyond Big Tech—dominant firms have built large software-based platforms delivering important consumer benefits, but these platforms also slow the rise of innovative rivals, including productive startups.5 Because access to these platforms is limited, competition has been constrained, creating a troubling market dynamic that slows economic growth
High Stakes, Bad Odds: Health Laws and the Revived Federalism Revolution
Get PDFThe Supreme Court’s 2021 term produced a remarkable number of blockbuster decisions, nearly hiding an underlying federalism agenda that surfaced in health care, reproductive rights, administrative law, and public health related domains. Health law has been a vehicle for constitutional change before, but the stakes for older laws, most of which rely on states to accomplish national goals, have been raised. The Court has doubled down on interpretive methods that limit governmental power, using formalist tools like clear statement rules that demand specificity and offer little deference to lawmakers or regulators. These rules have constitutional dimensions, including separation of powers and federalism, and have substantive implications. Add the major questions doctrine, which is likely to have deregulatory impact across public laws of all stripes, and a pattern is developing in which the “New Roberts Court” is centering a formal, separate-spheres vision of federalism that favors states’ rights, regardless of states’ capacity to wield that power or evidence that they do not.
The stakes could not be higher. Law is a determinant of health, controlling access to individual medical care and public health. For most social programs, Congress relies on federalism, which divides power and responsibility for designing and implementing policies across federal, state, and local governments. However, laws enacted before the Court’s “Federalism Revolution” in the 1990s, like the Medicaid Act, the Public Health Service Act, and the National Emergencies Act, have no federal fallback if states refuse to partner. The politics of the COVID-19 pandemic illuminated state leaders’ prioritization of party over partnering, stymieing federal laws needed to reach across state borders in an emergency, and demonstrating the dangers of states’ veto of federal law when no fallback exists. Yet, state capacity to govern, to exercise power allocated by federalism, has been assumed by judges and theorists alike. The pandemic crystalized that the governance capacity assumption is out of step with evidence that many states have neglected public health and other social programs. Further, the inherent variability federalism invites impacts health inequitably, especially for racial and ethnic minorities and other vulnerable populations.
This article examines the Court’s recent decisions elevating formalism through imposing clear statement rules on old laws, foregrounding dual sovereignty federalism, and discounting the ubiquity of federal/state partnerships. The article next questions theoretical assumptions about federalism’s values and illustrates the risks through two key examples, Medicaid expansion and the COVID-19 public health emergency. The article then explores possible solutions, identifying legal and ethical principles courts, administrative agencies, states, and other policymakers could use given that the Court is not likely to change course anytime soon. Congress has authority to adopt fully federal laws, or to amend laws that have no fallback, either of which have the ironic effect of increasing federal presence in states that refuse to partner. Beyond legislative commitment, the traditional federalism values of state sovereignty and political accountability could be informed by concrete measures of governance capacity such as budgeting adequate funding. Likewise, the values of state experimentation and policy variation are more than theory, and I draw on ethical and legal principles for valid experimental design to explain how they might be evaluated. This article rings an alarm bell that many federal health laws are in danger of instability and dilution, but it may be possible to walk back from the precipice
INTRODUCTION: Securing Reproductive Justice After Dobbs
Get PDFWhen we conceptualized this symposium, Roe v. Wade1 was still the law of the land, albeit precariously. We aimed to commemorate its fiftieth anniversary by exploring historical, legal, medical, and related dimensions of access to abortion as well as the challenges ahead to secure reproductive justice. With the leak of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on May 2, 2022, we shifted to mark the dawn of a new era. In the nearly identical official opinion announced on June 24, 2022,2 Justice Samuel Alito, writing for the majority (6-3), overturned Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey
Chapter 8: Hoping the Lord Will Provide: An Update on Church Plans, Reckless Investing and the AME Retirement Plan Collapse
No full textIntroduction
As of June, 2023 six class action suits were filed against the African Methodist Episcopal Church1 Ministerial Retirement Annuity Plan and several other defendants alleging self-dealing, and risky and imprudent management of the plan’s assets which resulted in a loss to the plan of more than 130 million. The plan’s own documents are in conflict with respect to the threshold question of ERISA governance.2 The principal plan document asserts that the plan is to be construed and enforced consistent with the requirements of ERISA. However, following consolidation of all cases in the district court of the Western District of Tennessee, the district court determined that the AME plan was not regulated by ERISA. The surviving claims of negligence, breach of fiduciary duty, conversion and civil conspiracy will all be resolved with respect to Tennessee law.3
The now consolidated complaints allege that for about two decades, Rev. Dr. Jerome Harris and several accounting and service providers (most prominently Symetra Life Ins. Co. which held about 38 million of the $130 million in assets the plan allegedly managed.7 Reverend Harris was replaced by Reverend James F. Miller who reported in January 2022 that “the Office of the Executive Director had been emptied with nothing in the office cabinets but ‘empty files and paperclips,’ not even the most recent version of the Plan document.”8 With no hint of irony Reverend Miller added: “never again will we allow one person to count the money.”9
More than 40 years since the enactment of ERISA which was consciously designed to reduce pension plan default risk through regular monitoring by both the Department of Labor and the Internal Revenue Service, this AME litigation once again raises questions about the wisdom of ERISA’s Church plan exemption. Numerous commentators have worried about the consequences for employees of religious employers who operate in an essentially federal regulation free zone for these kinds of plans.10 Congress’ reluctance to wade into oversight of religious institutions is not hard to understand.11 However, is it not surprising that religious officials frequently lack the investing skills required to effectively manage hundreds of millions of dollars (this is the charitable version of events in the AME case). Religiously affiliated actors appear to be attracted to financial self-dealing schemes of the same sort that tempt non-religious actors (this is the less charitable interpretation of events in the ongoing AME case).
If the AME litigation were an outlier it might make sense to conclude that Congress was wise to avoid the kinds of regulation that lead to distasteful entanglements between church and state.12 The truth is that the litigation involving the African Methodist Episcopal Church is just the latest in a line of cases in which plaintiffs/employees/retirees of religious institutions are the victims of plan default—usually at a stage in life in which retooling, moving and pivoting toward new career opportunities are not realistic. There can be no question that since at least the Supreme Court’s unanimous decision in Advocate Health13 participants in church sponsored retirement plans have faced greater default risk than comparable participants in non-church plans.14
This paper focuses on the AME case and proceeds as follows: in Part II I survey the status of several of the major church plan default cases which, like the AME case described in this Introduction, left thousands of generally older participants without promised retirement income. Absent effective state law remedies and a defendant with substantial resources, plaintiff-retirees typically have little recourse. In Part III I return to the AME case and examine the details of Tennessee state law with respect to breach of fiduciary duty, negligence, conversion and civil conspiracy. The rules in Tennessee will determine whether or not the pastor plaintiffs will recover any of their promised retirement payments and, if so, how much. A mastery of applicable state law in religion plan default cases, I argue, will be absolutely essential going forward as most church plans, even those that ritually invoke ERISA as the AME plan does, will be unable to take advantage of the ERISA causes of action designed to remedy negligence and/or misconduct. Finally, Part IV focuses on the future of church plan defaults and evaluates the need for greater oversight of these plans at the state level in light of the federal government’s longstanding abdication of regulatory responsibility in this area.
2023 NYU Review of Employee Benefits § 8.01 (2024
Movement on Removal: An Emerging Consensus on the First Congress
Get PDFWhat did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.
Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?
The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity,” since published in the University of Pennsylvania Law Review).
Unitary theorists on the panel conceded some errors and problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to emphasize statutory texts rather than legislative history (though the texts do not indicate an Article II removal power); that the endorsement of even a minority faction of roughly 30% of the House was still substantial; that it was the quality of the argument, not the quantity of supporters (though the “quality” is in the eye and the ideological priors of the beholder, and though it is unclear how original public meaning could be established by a defeated minority position); or perhaps it is the quality or historical importance of the speakers, like Washington, Hamilton, Madison, and Marshall, that counts (nevermind that Madison, Hamilton, and Marshall also contradicted the unitary theory). None of these pivots rescues the “Decision” myth.
Perhaps most interesting was the unitary theorists\u27 openness to turning to later evidence, of practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods of “original public meaning” during Ratification, and to engage in methods more consistent with common law constitutionalism and living constitutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory
Freehold Offices vs. \u27Despotic Displacement\u27: Why Article II \u27Executive Power\u27 Did Not Include Removal
Get PDFThe Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).
This Article offers an explanation for the difficulty in supporting this historical claim: Because it is wrong. Many officeholders in European monarchies bought their offices as part of a mutual bargain, and in return for their investment, their office was protected as property – especially in England. European administration depended upon a flexible mix of removable patronage offices and unremovable offices for sale. Legal scholarship has missed this history, but many European historians and economic historians have explained this widespread system of “venality.” Montesquieu’s The Spirit of the Laws rejected “displacement” at will (i.e., removal at pleasure) as a tool of “despotic government,” then endorsed “vénalité” limits on removal as a practical system of family investment, incentives, checks, and balances in constitutional monarchies. The sale of offices-as-property may seem strange and even corrupt to modern readers, but it was a long-lasting and practical foundation for the nation-state, modern administration, and colonial expansion.
Whereas vénalité had grown out of control in revolutionary-era France, the English had a more stable system of freehold property rights, a distinctive English protection of the officeholders’ investment against “despotic” displacement. Many central officers, powerful Treasury officers, and even some established eighteenth-century cabinet offices were unremovable. This history explains the silence on removal in the text of Article II, in the Convention and Ratification debates, especially in the Anti-Federalists’ speeches, and gives context to Hamilton and Madison rejecting presidential removal in the Federalist Papers. The sale of offices-as-property shaped colonial America and the Declaration of Independence, and it was the background for the Constitution’s “offices of profit” and early congressional requirements of financial “sureties of office.”
When unremovable officers were uncooperative with the English monarch’s policy goals, the Crown turned to alternate ways to “execute” and “take care” of execution: through systems of rotation and the creation of higher layers of offices. Removal was neither necessary nor sufficient for law execution. Unitary theorists’ mistaken assumptions about “executive power” are not only a warning for the Roberts Court to exercise restraint in upcoming cases on presidential power and the administrative state; they also illustrate originalism’s blindspots and biases in practice
Care Work, Gender Equality, and Abortion: Lessons from Comparative Feminist Constitutionalism
Get PDFJulie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).
Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment also includes a sense that transformative political and constitutional change are necessary but difficult because (as Suk and Kate Shaw recently noted) Americans have “lost the habit and muscle memory of seeking formal constitutional change” —and because of problems like polarization, gerrymandering, and restrictions on voting. Drawing on her expertise in comparative constitutional law and gender equality, Suk offers “comparative lessons” from feminist lawmaking and constitutionalism elsewhere to help move the U.S. to a democratic constitutionalism that is post-patriarchy and post-misogyny. (Pp. 212-14.) In this review, I explore some of those lessons concerning governmental commitments to supporting care and gender equality and to fostering reproductive justice
Ordered Liberty after Dobbs
Get PDFThis Essay explores the implications of Dobbs v. Jackson Women’s Health Organization for the future of substantive due process (SDP) liberties protecting personal autonomy, bodily integrity, familial relationships (including marriage), sexuality, and reproduction. We situate Dobbs in the context of prior battles on the Supreme Court over the proper interpretive approach to deciding what basic liberties the Due Process Clause (DPC) protects. As a framing device, we refer to two competing approaches as “the party of [Justice] Harlan or Casey” versus “the party of Glucksberg.” In Dobbs, the dissent co-authored by Justices Breyer, Sotomayor, and Kagan represents the party of Harlan, while Justice Alito’s majority opinion reflects the party of Washington v. Glucksberg. We argue that Glucksberg is the “leading modern case” and the proper approach only for justices who oppose and wish to eliminate the expansion of SDP rights. None of the decisions in the past century that has protected a basic personal liberty under the DPC would have come out as it did had the Court applied Glucksberg’s framework.
The Essay also addresses an often-vexing question of importance to family law lawyers and teachers: what is the standard of review for cases about substantive due process liberty? Some of the fiercest critics of SDP liberty, such as Justice Scalia, have insisted that the Court must use either strict scrutiny if a fundamental right is implicated or a deferential, rational basis test if one is not. They have done so, generally, to curb recognition of protected “liberty” under the DPC. We argue instead that the Court’s actual practice in the leading cases surrounding the legal regulation of intimacy and the family maps onto a continuum of ordered liberty, with several intermediate levels of review rather than a rigid two-tier framework. We conclude with some thoughts about the future of SDP and strategies for liberals and progressives concerned about the protection of the “fabric” of constitutional liberty going forward