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Civil Rights Summarily Denied: Race, Evidence, and Summary Judgement in Police Brutality Cases
No full textWithin seconds of arriving to conduct a mental health wellness check, white police officers from Dallas, Texas, shot Jason Harrison, a 39- year- old Black man, and let him die on the ground.1 The officers claimed that the victim had lunged at them with a screwdriver.2 The victim’s mother, an eyewitness and plaintiff in the ensuing § 1983 action, claimed otherwise.3 The district court— relying on the Supreme Court case Scott v. Harris4— found that a body camera video5 spoke for itself, and it granted summary judgment for the police defendants.
Harrison’s case is but one example of the tripartite system of racialized police violence in the United States. First are the officers on the ground who directly enact violence on people of color. They are backed up by the police departments, which may try to cover up or otherwise shield the officer and themselves from prosecution and liability.7 Second are prosecutors who are reluctant to prosecute officers for on- duty killings and brutality.8 In light of the lack of prosecution and their own losses, surviving victims’ and families’ only recourse is the civil justice system. Enter the third level of this system of injustice: the judiciary. Here, summary judgment motions on qualified immunity present the opportunity for institutional racial insiders to maintain racial order.
Because the judiciary is disproportionately white when compared to jury pools, summary judgment, as a procedural device, is a racialized one.9 When judges use videos as evidence in summary judgment decisions, they compound the racial implications and injustice. In this context, Dan Kahan has demonstrated that judges suffer from “cognitive illiberalism.”10 In other words, judges are not the neutral, unbiased adjudicators they believe themselves to be. When viewing judicial cognitive illiberalism under the lens of Critical Race Theory, the problem intensifies. This chapter situates the phenomena of cognitive illiberalism into the system of racial stratification and racism in the United States by examining judicial reliance on “racial character evidence.
Medicaid, the Supreme Court, and Safe Care for Nursing Home Residents
No full textMedicaid provides public insurance coverage to more than 82 million low-income people, including children and people who are pregnant, have disabilities, and are elderly, to ensure that they can access essential medical care. Many are surprised to learn that Medicaid is the primary payor for long-term care in the US, covering more than 6 in 10 people receiving institutional long-term services and supports and making nursing home care the second largest category of spending in Medicaid (after hospitals).
Medicaid makes statutory promises to states and beneficiaries. States have an entitlement to federal matching funds so long as they provide promised care to beneficiaries under the Medicaid Act, and beneficiaries have a legal right to enroll and receive specified benefits if they meet eligibility requirements. Yet, states sometimes prevent these promised benefits from being covered, even when doing so is mandatory under the Medicaid Act. The ongoing partnership between the US Department of Health and Human Services and states makes it so Medicaid is a source of collaboration, but also conflict, between the federal government and states
The Humanities Strike Back: (E)ESG and Justice Strine Challenge Gamer Shareholder Primacy
Get PDFLeo E. Strine, Jr. is closing in on Blair and Stout for the undisputed title of all-time top-scoring stakeholderist.3 I don\u27t intend to squander this opportunity to roast and toast him by weighing the pros and cons of basketscoring primacy. Instead, my aim is to surface an overlooked argument in the debate over shareholder primacy and stakeholderism, the case for which has been recently reinvigorated by Strine\u27s work. My argument is this: one underappreciated aspect of shareholder primacy\u27s appeal is that it creates a competition with a single endpoint, basically a game, and that the exhilarating tournament that results, separate and apart from any ethical or instrumental justification, is an underestimated aspect of shareholder primacy\u27s appeal. I want to be clear that this is not intended as any glib insult hurled at the doctrine. Quite the contrary, its advocates root their claims in wholly legitimate philosophical foundations, in libertarian ideas about freedom and private property, in notions of the common good best advanced by each person pursuing his or her own lawful self-interest, in empirical claims about what best stimulates economic growth, in pragmatic claims that stakeholder interests are best addressed by governments, not corporations. 4 I disagree with some of these claims, but accept the good faith nature of the arguments made in their favor
Property\u27s Building Blocks: Hohfeld in Europe and Beyond
Get PDFIn the hundred years since Hohfeld published his two “Fundamental Legal Conceptions” articles, the “bundle-of-rights” view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship. Seen as a corrective to lay conceptions and a predecessor “Blackstonian” view of property as the “sole and despotic dominion” of an “owner” over a thing, the central insight of Hohfeldian analysis is commonly taken to be that property is not a single “thing” but rather a “bundle of rights” with respect to things and persons. In recent years, however, this Hohfeldian view has come under increasing attack by critics calling to replace the bundle-of-rights picture with a return to lay or neo-Blackstonian conceptions of property, as the “right to a thing,” “thing-ownership” or, simply, “the law of things.” Yet what precisely is at stake in this dispute has remained somewhat nebulous. In the words of one critic, although all sides to the debate “agree that the thing versus ad hoc bundle contrast is significant, it is surprisingly difficult to specify what the contrast really means.” Do the critics really mean to claim that property, as a legal concept, should be taken to refer to the “thing” or object itself, rather than to legal rights pertaining to it? Or is it rather that the legal rights should be taken to pertain to a person-thing relation, rather than to one between persons? Or is it that the rights at issue should be seen as one or a few rather than many? Or, if many, then necessarily “unified” rather than disaggregated? Or, whether single or multiple, “absolute” rather than “qualified”? And, finally, is the dispute — with respect to any or all of these questions — a matter of descriptive or normative or conceptual disagreement?The crux of the problem, we suggest, is a fundamental mischaracterization of the Hohfeldian analysis of property—by both critics and defenders. The “bundle of rights” label obscures from view a distinct — and more fundamental — dimension of Hohfeldian analysis, namely that property is a social relation. And as or more important than getting right the precise content of each of these claims is understanding their inter-connection: the “social relations” claim is the fundamental platform of the analysis, generating in its turn the “bundle of rights” claim as a conclusion. Indeed, if a short moniker were wanted for Hohfeldian analysis, much preferable to the “bundle of rights” would be the “relational” conception of property.Failing fully to absorb the relational character of the Hohfeldian conception of property has led many to the conclusion that Hohfeldian analysis results in the “disintegration” of property, rendering it no longer a distinct concept or field of law — an outcome embraced by some (neo-Hohfeldians) and decried by others (neo-Blackstonians). This conclusion is both too hasty and imprecise. Imprecise because it fails to locate the contest between Hohfeldian and neo-Blackstonian conceptions of property as pivoting around not one, but at least two and perhaps three, points of contrast, each tracking a central but distinct line of Hohfeldian analysis. Hasty because while disintegration is to be decried, the apt solution is not a “rethingification” of property. Rather, its “reintegration” by carrying forward the method of Hohfeldian analysis in two constructive directions: (1) a resource-specific answer to the question of “what is property about?” and (2) in answer to “what does property consist of?” an architectural analysis of the basic entitlements that serve as the fundamental building blocks of all property forms
Breaking Ranks: How the Rankings Industry Rules Higher Education and What to Do about It
No full textSome colleges will do anything to improve their national ranking. That can be bad for their students—and for higher education.Since U.S. News & World Report first published a college ranking in 1983, the rankings industry has become a self-appointed judge, declaring winners and losers among America\u27s colleges and universities. In this revealing account, Colin Diver shows how popular rankings have induced college applicants to focus solely on pedigree and prestige, while tempting educators to sacrifice academic integrity for short-term competitive advantage. By forcing colleges into standardized best-college hierarchies, he argues, rankings have threatened the institutional diversity, intellectual rigor, and social mobility that is the genius of American higher education.
As a former university administrator who refused to play the game, Diver leads his readers on an engaging journey through the mysteries of college rankings, admissions, financial aid, spending policies, and academic practices. He explains how most dominant college rankings perpetuate views of higher education as a purely consumer good susceptible to unidimensional measures of brand value and prestige. Many rankings, he asserts, also undermine the moral authority of higher education by encouraging various forms of distorted behavior, misrepresentation, and outright cheating by ranked institutions. The recent Varsity Blues admissions scandal, for example, happened in part because affluent parents wanted to get their children into elite schools by any means necessary.
Explaining what is most useful and important in evaluating colleges, Diver offers both college applicants and educators a guide to pursuing their highest academic goals, freed from the siren song of the best-college illusion. Ultimately, he reveals how to break ranks with a rankings industry that misleads its consumers, undermines academic values, and perpetuates social inequality.https://scholarship.law.bu.edu/books/1343/thumbnail.jp
Ethical Duties of Class Counsel Also Representing Class Representatives
Get PDFIn their excellent article entitled May Class Counsel Also Represent Lead Plaintiffs?,1 Professors Bruce Green and Andrew Kent explore a particular aspect of two broader questions I have also addressed: (1) who should regulate class action lawyers;2 and (2) who will regulate class action lawyers?3 I, too, focused on lawyers\u27 conflicts of interest; however, Professors Green and Kent focus even more specifically on conflicts arising from class counsel\u27s simultaneous representation of both the class and individual clients who are serving or will serve as class representatives. Their concern is with three particular scenarios in which the class representative\u27s interest conflicts with the interests of the class as a whole: holdouts (where the class representative objects to a settlement viewed by class counsel as benefitting the class as a whole); sellouts (where the class representative wants to settle their individual claim in a manner that may prejudice the interests of the class); and payouts (where the class representative wants to receive unjustified individual payments for serving as a representative).4 After identifying these conflicts, they analyze class counsel\u27s obligations under both rules of professional conduct and class action law (including both Rule 23 of the Federal Rules of Civil Procedure and individual case adjudication).5 They conclude by making suggestions concerning how class counsel can better understand their existing obligations both to their individual clients and to the class6 and what types of reform would further clarify and protect both the individuals and the class. 7 In considering possible reform efforts, they wisely take a realistic view of both institutional expertise and the likelihood that particular reforms could be enacted.
This Response agrees with almost everything Professors Green and Kent have to say about this particular type of conflict of interest. The purpose of this brief comment is threefold: first, it explains why the existing rules of professional conduct adequately address the authors\u27 concerns about necessary protections for the individual clients;10 second, it comments on the authors\u27 proposal for federal judicial reform to provide the necessary protections for the class; and third, it offers my own views on the extent to which courts can, do, and should address these issues in the context of individual case adjudication
Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism
Get PDFThe Supreme Court\u27s recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a removal of context. This article focuses on the executive power part of the Vesting Clause and particularly the unitary theorists\u27 misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England\u27s limited monarchy: the era\u27s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a royal prerogative or a default royal power. The structure of their historical comparison is flawed: the Constitution explicitly limits many royal powers, such war, peace (treaties), and the veto, so that the President is weaker than the king, but they still infer from Article II other unnamed executive powers (like removal) that would make a President stronger than a king.
When one investigates the unitary theorists\u27 evidence and follows their sources, one finds a pattern ofmisinterpreting historical sources, especially Blackstone. In particular, the recent amicus brief by unitary scholars in Seila Law misinterprets Blackstone\u27s use of the word disposing of offices as removing, instead of dispensing or appointing, and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small errors. They show that the unitary theorists were not following their claimed historical method of English prerogative . . . defined by law. Blackstone provides clear evidence against a default royal removal power. These errors are also a cautionary moment about originalism\u27s methodological flaws
The Role of Departments in the Design of the Federal Government
Get PDFReviewing Blake Emerson,The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller, 38 Yale J. Reg. 90 (2021)
Adherents to the unitary executive theory, which posits that the Constitution grants the President complete and absolute control over the execution of the law, claim that their view is required by the text of the Constitution, especially Article II’s vesting clause which proclaims that the “Executive Power shall be vested in a President of the United States of America.” As Justice Scalia put it, “this does not mean some of the executive power, but all of the executive power.” In Scalia’s view, the separation of powers demands that the President must have the power even to prevent the prosecution of Executive Branch officials, including those who have engaged in serious job-related criminal misconduct that threatens to undermine the accountability of the Executive Branch. Adherents to the theory on the Supreme Court may be in the process of dismantling all checks Congress has placed on presidential control over the administration of the law, including, among others, limitations on removal of Officers of the United States, the discretion of agency experts, and the independence of independent agencies
Abortion Experts
Get PDFThe COVID-19 pandemic, and the overturning of Roe v. Wade,1 has intensified the fight for access to medication abortion. 2 As state governors put emergency orders into place limiting health care provisions to essential services, some also limited access to abortion, designating it a nonessential service. 3 In the face of these challenges, women\u27s health advocates, in keeping with prior advocacy, have called for greater access to medication abortion.4 The increased reliance on telemedicine during the COVID-19 pandemic provides new possibilities for the provision of abortion medication that do not rely on a patient engaging in-person at a clinic for a physician\u27s visit or to pick up medication. 5 While feminist health advocates and physicians began to advocate for a change in FDA rules that would allow for the provision of medication abortion via telemedicine, conservatives demanded the opposite: that the FDA enforce existing and unnecessary regulations on medication abortion and pass laws to ban medication abortion via telemedicine. 6
In tracking these recent fights, and in conversation with a growing literature on law and expertise,7 I argue that conservative and progressive advocacy over medication abortion are windows into how courts legitimize and delegitimize different types of expertise in the service of political goals. Courts deploy arguments about expertise to lay the groundwork for a separation of powers analysis and institutional arguments about when they should act vis-a-vis as administrative agencies. By relying on a tried and true mode of institutional reasoning, these arguments help the court retain the perception of neutrality. 8 Yet, even as courts purport to act in a neutral manner, their decisions have the capacity to legitimate the claims of some experts over others and impact the ability of people to access abortions. I argue in this essay that, in the aggregate, like the law, these expert claims form the background norms and assumptions that shape how we believe abortion should be regulated. It is important to acknowledge the politics of expertise, how it is deployed for the sake of institutional preservation, and the way expertise and law are co-constitutive. Seeing expertise as situated and operationalized for political and distributional gains could allow reproductive rights advocates the ability to open up new doors for political advocacy and help advocates remain agile to the use and deployment of legal arguments rooted in expertise.
This paper proceeds as follows. First it will set the stage for our cotemporary moment by telling the political history of medication abortion. Then the paper will turn to contemporary debates on medication abortion as they have played out in the courts in the context of COVID19 with a focus on how expertise has been mobilized to advocate for and against access to mifepristone. Finally the paper will offer a new way to begin to think about the co-constitutive relationship between law and expertise in the medication abortion context. Understanding the interaction of law and expertise in the context of abortion is important for understanding how the court deploys expert ideas to arrive at holdings that have specific political and material distributional consequences
The Fundamental Building Blocks of Social Relations Regarding Resources: Hohfeld in Europe and Beyond
Get PDFIn the hundred years since Hohfeld published his two “Fundamental Legal Conceptions” articles, the “bundle-of-rights” view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship. Seen as a corrective to lay conceptions and a predecessor “Blackstonian” view of property as the “sole and despotic dominion” of an “owner” over a thing, the central insight of Hohfeldian analysis is standardly taken to be that property is not a single “thing” but rather a “bundle of rights” with respect to things and persons. In recent years, however, this Hohfeldian view has come under increasing attack by critics calling to replace the bundle-of-rights picture with a return to lay or neo-Blackstonian conceptions of property, as the “right to a thing,” “thing-ownership” or, simply, “the law of things.” Yet what precisely is at stake in this dispute has remained somewhat nebulous. In the words of one critic, although all sides to the debate “agree that the thing versus ad hoc bundle contrast is significant, it is surprisingly difficult to specify what the contrast really means. The crux of the problem, we suggest, is a fundamental mischaracterization of the Hohfeldian analysis of property—by both critics and defenders. The “bundle of rights” label obscures from view a distinct—and more fundamental—dimension of Hohfeldian analysis, namely that property is a social relation. And as or more important than getting right the precise content of each of these claims is understanding their inter-connection: the “social relations” claim is the fundamental platform of the analysis, generating in its turn the “bundle of rights” claim as a conclusion. Indeed, if a short moniker were wanted for Hohfeldian analysis, much preferable to the “bundle of rights” would be the “relational” conception of property.Moreover, each of these components of Hohfeldian analysis—social relations and bundle of rights—is fundamentally distinct from a third set of points with which they are commonly fused, concerning the dematerialization of the objects and interests of property. It is the blurring of what are three distinct lines of analysis—what we may call dephysicalization, disaggregation and dematerialization—that has led many to the conclusion that Hohfeldian analysis results in the “disintegration” of property, rendering it no longer a distinct concept or field of law. An outcome embraced by some (neo-Hohfeldians) and decried by others (neo-Blackstonians). This conclusion, we believe, is both too hasty and imprecise. Imprecise because it fails to locate the contest between Hohfeldian and neo-Blackstonian conceptions of property as pivoting around not one, but at least two and perhaps three, points of contrast, tracking each of the central but distinct lines of Hohfeldian analysis: dephysicalization, disaggregation and dematerialization. It is too hasty because the dephysicalization of property, as a social relation, poses no problems; and while disaggregation and dematerialization may indeed lead to troubling—if very distinct—forms of disintegration, the fault lies less with the specific content of Hohfeld’s claims than with a failure, post-Hohfeld, to follow through on his underlying method and structure of analysis in a constructive fashion. And so the solution to disintegration, we urge, is not a “rethingification” of property but rather its “reintegration”—by carrying forward the method of Hohfeldian analysis in two constructive directions: (a) a resource-specific answer to the question of “what is property about?” and (b) in answer to “what does property consist of?” an architectural analysis of the basic entitlements that serve as the fundamental building blocks of all property forms