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Federalism, Leadership, and COVID-19: Evolving Lessons for the Public’s Health
No full textThe COVID-19 pandemic has had an enduring effect across the entire spectrum of law and policy, in areas ranging from health equity and racial justice, to constitutional law, the law of prisons, federal benefit programs, election law and much more. This collection provides a critical reflection on what changes the pandemic has already introduced, and what its legacy may be. Chapters evaluate how healthcare and government institutions have succeeded and failed during this global \u27stress test,\u27 and explore how the US and the world will move forward to ensure we are better prepared for future pandemics. This timely volume identifies the right questions to ask as we take stock of pandemic realities and provides guidance for the many stakeholders of COVID-19\u27s legal legacy. This book is also available as Open Access on Cambridge Core
Knowledge Generation and Uncertainty in an Unpredictable Social World
Get PDFProfessor Megan T. Stevenson’s Article, Cause, Effect, and the Structure of the Social World, is an incredibly important, deep, and thought-provoking argument explaining what we can learn about fundamental causal relationships when we observe few interventions with long-lasting, cascading consequences.1 It is a profound reflection on empirical work in the social sciences.
The Article argues that we have found few, if any, well-identified policy levers that generate outsized, long-term positive impacts for those impacted by the criminal legal system. It offers several explanations for the lack of randomized control trial (“RCT”) evaluations with large, non-mechanical effects, but the critical insight is that the social world is composed of stabilizing forces.” To make this argument, it begins with empirical work, documenting that hundreds of careful experiments have studied the criminal legal space. Stevenson argues that RCTs are highly credible research designs, and are the type of evidence we ought to trust the most to identify causal relationships. Relative to other forms of causal empirical work, RCTs are more difficult to manipulate and more likely to be published regardless of their findings. Despite several features making RCTs less biased than other designs, these experiments are still more likely to be published and well-known if they find outsized policy impacts. Yet, even with this potential bias, we see few RCTs generating large, long-lasting improvements with respect to many of the outcomes we care about. Those interventions that initially seem promising have difficulty replicating or scaling.
A. Some of the Major Contributions Within Cause, Effect, and the Structure of the Social World
The Article carefully demarcates the scope of the critique, and much of this Response will be spent discussing the boundaries of its argument. The empirical argument focuses on RCTs.2 RCTs often focus on relatively small-bore solutions. These interventions tend to be small because implementing an RCT often requires navigating normative and practical constraints restricting the scope of policies researchers can test.3 This Response explores the idea that the interventions we are willing to evaluate with an RCT are constrained by political will, ethics, time, costs, and many other factors, and what these constraints imply for the inferential argument. Constraints on RCTs in social science are common, but we may be exceptionally constrained within criminal legal interventions.4 Understanding which constraints are binding on our knowledge-generation process is essential for interpreting the Article’s evidence, its epistemic versus substantive critiques, and ultimately, our ability to improve criminal legal polic
Global Pull Incentives for Better Antibacterials: The UK Leads the Way
Get PDFThe article from Leonard and the team from the National Institute for Health and Care Excellence, NHS England, and NHS Improvement [1] asks the question whether the UK subscription program can restore the antibacterial pipeline, with an insiders’ description of the process and strategy that led to implementation (briefly, a ‘pull incentive’ of reimbursement for new antibacterials that is delinked from volume of sales with payments based on the added value to the whole health and social care system).
Governments [2,3,4,5,6,7,8,9], academics [10,11,12], civil society [13, 14], think tanks [12, 15,16,17,18], and other key stakeholders [19, 20] have clearly articulated the problems with the pipeline for antibacterials, with an increasing focus on pull incentives that do not depend on the volume of sales, also known as delinked pull incentives. This delinked approach is recognized as the key because it resolves the tensions that create the underlying market failure of antibacterials: via delinked pull incentives, companies are rewarded for innovation while stewardship is simultaneously supported by eliminating any incentive to generate sales through marketing efforts. Although these tensions are also potentially true for any class of antimicrobial therapeutic, they are most acute for antibacterials because of the frequency of use and the presence of prior generations of antibacterials with partial but declining effectiveness.
As described in their article, the UK has now become the first country to implement a delinked pull incentive for novel antibacterials. To appreciate this monumental achievement, three analogies may be helpful
The SEC\u27s Compensation Clawback Loophole
Get PDFThe SEC has recently released final rules implementing the executive incentive compensation recovery or “clawback” provisions of the 2010 Dodd-Frank Act. These rules are aimed at recovering from executives incentive compensation determined to be excessive in light of a subsequent accounting restatement. Unfortunately, the SEC’s rules create a loophole by excluding purely time-vested stock and stock option grants from the reach of the new clawback regime. This aspect of the rulemaking seems inconsistent with the intent of Congress, and the result likely will be to distort executive pay practices in a perverse fashion, shifting compensation back in the direction of the time-vested stock option heyday of the late 1990s and early 2000s. As such, the SEC’s decision is also regrettable as a policy matter. In addition to exempting a large fraction of incentive compensation from the reach of the clawback, a renewed emphasis on time-vested options would reverse a salutary trend in executive compensation design in favor of more tightly performance-conditioned pay instruments that create incentives over a broader range of market conditions than time-vested options, often reward executives only when they outperform their peers, and minimize executives’ ability to use inside information to maximize their compensation. To be sure, institutional investors and proxy advisory firms that embrace serious linkage between pay and performance may resist firms backsliding into heavy usage of time-vested stock and options, but given the risks to executives and the cost to firms of issuing compensation instruments subject to the new clawback, I am not optimistic
The Impact of Third-Party Funding on Access to Justice
No full textThird-party funding advantages funded parties because funded parties already tend to be calculable winners on the merits rather than parties likely to lose on the merits. Thus, parties likely to win on the merits are even more likely to win with third-party funding, but not all winning parties can secure third-party funding. Hence, the overarching question is as follows: if funders pick winners among the winners, what does real access to justice look like in an era of third-party funding? For example, would real access to justice need to involve third-party funders funding indigent or innocent respondents, expensive long-shot claimants, righteous injunctions with no monetary recovery, or unprofitable cases that espouse some worthy yet controversial position?
This chapter uses a thought experiment to identify areas of law and categories of parties where the promise of third-party funding may fall short regarding expanding access to civil justice. After outlining the thorny needles of this problem, this chapter presents a potential solution for funding long-shot winners, expensive winners, respondent winners, nonfinancial winners, and political winners—depending on the facts and circumstances of the disputes
Amicus Brief in SEC v. Jarkesy on Original Public Meaning of Article II & Presidential Removal
Get PDFIn holding that the SEC’s administrative law judges’ protections against removal were unconstitutional, the Fifth Circuit extended Free Enterprise Fund v. PCAOB, 561 U.S. 447 (2010), and Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). Those precedents were based on an incomplete historical record. Subsequent historical research shows that the Founding generation never understood Article II to grant the President an indefeasible removal power.
To be sure, this evidence does not suggest Congress should have unlimited power to protect any executive office or delegate removal to itself. Rather, the bottom line is that the evidence of original public meaning is so unclear and mixed that this Court has no sufficient originalist basis to overturn long-standing congressional statutes. While the SEC’s arguments are sufficient to reverse the Fifth Circuit’s ruling without reconsidering this Court’s prior precedents on removal, it should consider doing so in light of the historical evidence.
First, this brief presents new research showing that the Executive Vesting Clause did not imply a removal power, because “executive power” did not imply removal in the eighteenth century. The English common law protected many offices as freehold property rights, meaning that the officers could not be removed without legal process and except in cases of misconduct. Many powerful British executive offices, especially in the Treasury and even in the royal cabinet, were unremovable in the eighteenth century. English and colonial administration was a hybrid of removable patronage offices and unremovable freehold offices. These protections have not been examined in the Court’s previous opinions about removal. This background explains why no English sources described removal as a royal prerogative, and why it has been so hard for unitary theorists to find any English or Ratification-era sources discussing removal as an “executive power.” It also explains why Montesquieu’s The Spirit of the Laws rejected removal at pleasure as “despotic,” and why Chief Justice Marshall concluded that William Marbury’s office was his unremovable property.
Second, this brief summarizes other new research on Article II, the law of offices, the Ratification Debates, and the First Congress, also undercutting the assumptions about presidential removal.
Third, at the broadest level, this case is a test for whether originalism is a reliable method in practice. Leading unitary executive scholars have tried to reconstruct their removal theories in response to this new evidence, but their theories contradict each other, are internally contradictory, introduce new errors, and repeat many old errors and misunderstandings without addressing the core critiques. These weak responses indicate that little evidence supports their claims about removal. The Founding era left the removal question unresolved. If this Court is committed to originalism as a check against judges voting their personal preference, it should conclude that the evidence is insufficient to overturn long-standing statutes
Mutual optimism and risk preferences in litigation
Get PDFWhy do some legal disputes fail to settle? From a bird’s eye view, the literature offers two categories of reasons. One consists of arguments based on informational disparities. The other consists of psychological arguments. This paper explores the psychological theory. It presents a model of litigation driven by risk preferences and examines the model’s implications for trials and settlements. The model suggests a foundation in Prospect Theory for the Mutual Optimism model of litigation. The model’s implications for plaintiff win rates, settlement patterns, and informational asymmetry with respect to the degree of risk aversion are examined
Title IX and the Challenges of Educating for Equality
Get PDFEducating for equality to foster practicing equality must be a vital task for the next fifty years of Title IX. It is also a task that fits into the mission and expertise of schools as educational institutions. I use “educating for equality” as shorthand for the role of schools in preparing children, adolescents, and college students to participate in and build a world in which—to echo Title IX’s “37 words that changed everything”1—“No person in the United States, shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 2 While Title IX’s mandate of participation and inclusion3 has a specific reach, educating for equality should aspire to reach more broadly to prepare children, adolescents, and college students to practice equality—and equity—in their daily lives. In describing this task as educating for equality, I borrow from the recent “Educating for American Democracy” initiative, aimed at educating young people “to participate in and sustain our constitutional democracy” in order—in the language of the Constitution’s Preamble—to make our union “more perfect.”4 While that initiative seeks to foster “reflective patriotism” and “excellence” in U.S. civics and history, its emphasis on cultivating critical thinking and awareness of “hard histories” of inclusion and exclusion and issues of agency, power, and oppression are pertinent also to educating for equality aimed at fostering Title IX’s goals.5
In the context of the Title IX responsibility of higher educational institutions to prevent and address sexual harassment, my colleague Naomi Mann has criticized traditional approaches that are “identity-neutral” and “powerevasive.”6 She calls instead for schools to analyze how power and identity interact, studying the broader college ecosystem. In Sexual Citizens: A Landmark Study of Sex, Power, and Assault on Campus, growing out of the pioneering SHIFT study (Sexual Health Initiative to Foster Transformation), Jennifer S. Hirsch and Shamus Khan also argue for an “ecological model,” which “situates individuals, along with their problem behaviors, in the broader context of their relationships, their pre-college histories, the organizations they are a part of, and the cultures that influence them.”7 It is an approach attentive to the multiple dimensions of power and the “multiple hierarchies” in the “ecosystems” in which sexual assault occurs.8 They persuasively argue that institutions have a responsibility to foster young people’s “sexual citizenship,” which denotes “the acknowledgement of one’s own right to sexual self-determination and . . . recognizes the equivalent right in others.”9
In this essay, I will argue that these recommendations offer helpful guidance for a proactive, ecological, and intersectional approach to the education that schools should undertake to help realize Title IX’s goals of equal participation and inclusion and to prevent problems of sex discrimination—including the ongoing problem of campus sex-based harassment and sexual violence. I will also observe that, while the legislative climate in some states seems conducive to such education, the climate in other states—evidenced by laws restricting what may be taught in schools about race, gender, and sexual orientation— presents obstacles to such education
After Roe, After Dobbs
Get PDFBeing able to control reproductive choices—having the ability to decide if and when to give birth and become a parent—is central to determining how one may build a life and future. For some, having control over their reproductive capacities could mean the difference between completing or not completing their education, taking advantage of a particular job opportunity or having to decline it, or moving or not moving to a different location. These decisions shape our economy and our society
To Democratize Algorithms
Get PDFJurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.
This Article contends that the current approach to democratization is too narrow a solution if we seek to redress how algorithms mediate the political powerlessness experienced by oppressed groups. The problem with algorithms is not the mere absence of public input; it is one of power. Current algorithms operate to entrench state practices that suppress the democratic participation of oppressed groups, reinforcing their economic and social inequality as well as their structural marginalization in governance. While deliberative approaches have attracted broad political support, these reforms cannot reach these deeper power concerns. Moreover, the current approach to ‘democratization’ comes with a hidden cost: by building trust and legitimacy around algorithms, it can distract attention from how the state’s current use of algorithms exacerbates existing inequalities, power imbalances, and social stratification.
Addressing these harms may be possible, but doing so requires equalizing how power is distributed among different groups within our current democratic institutions and our society more generally. In this sense, the democratic participation problem facing algorithms extends beyond the challenges of regulating a new technology; instead, the problem represents a microcosm of oppressed people’s broader struggle for full participation in this country’s democracy. Building a more inclusive democracy will be a long-term, and ongoing, project. As we struggle to move toward that world, the aim should be to build processes that endow oppressed groups with the power to resist algorithmic technologies that reinforce their political, economic, and social subordination in the current moment