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Social Security, Divorce, and the Scope of Federal Preemption
Get PDFIn light of the United States Supreme Court’s decision in Howell v. Howell, in May 2017, this article urges Congress to clarify its intent for the scope of federal preemption of state property distribution laws under the anti-assignment provision of the Social Security Act, 42 U.S.C. § 407.Congress enacted the Social Security Act in 1935 to serve as a federally regulated social insurance benefit program designed to ensure a continuing source of income to retired workers, age 65 or older. Within the Act, Congress reserved for itself the exclusive authority to regulate the program, with one of the primary purposes being the uniform distribution of benefits to qualified employees, as well as to qualified spouses, whose rights are clearly provided for in § 402 of the Act. To this end, § 407 of the Act prohibits the assignment of Social Security benefits in any other legal process.In 1975, Congress amended the Act to include § 659, which incorporates a narrow exception to the anti-assignment provision to enforce legal obligations to provide child support or alimony. However, § 659 excludes any payment of alimony in compliance with any equitable division of property between former spouses. Thus, under the plain language of the Act, Congress has federally preempted state courts from assigning Social Security benefits when equitably dividing marital property in divorce—a subject that, historically, is presumed to be governed by state law.Relevant to this conflict of authority, in 1979, in Hisquierdo v. Hisquierdo, the United States Supreme Court earmarked the parameters of the scope of federal preemption under the Railroad Retirement Act, which the Court deemed to be analogous to the Social Security Act, and defined its preemptive reach to include not only the assignment or division of federal benefits upon divorce, but the offset of benefits as well. Its decision was based on the non-contractual nature of the federal benefits in question, which prohibited the classification of benefits as marital property divisible upon divorce.Similarly, in 1981, in McCarty v. McCarty, the United States Supreme Court prescribed the same preemptive reach to the distribution of federal military retirement benefits. In response to the McCarty decision, in 1982, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA), which expressly authorized state courts to distribute disposable retired pay in divorce proceedings.In turn, in 1989, in Mansell v. Mansell, the United States Supreme Court clarified the scope of state court authority under the USFSPA by holding that state court authority was limited to disposable marital property, which did not include the portion of retired pay that was waived in the election for disability pay, which the Court held was the separate property of the disabled military retiree—analogous to the separate, non-contractual nature of Social Security benefits. Many courts viewed this limitation as inequitable to military spouses in the distribution of marital property upon divorce.As a result of the limitation of Mansell, many state courts began a campaign to offset the portion of military retirement pay that was waived to receive disability pay with other disposable marital property, in an effort to compensate for the inequity resulting from the federal preemption of state equitable distribution laws, under which, otherwise, state courts are authorized—and obligated—to equitably divide marital property. However, other state courts deemed offsetting in this manner to violate the Supremacy Clause of the United States Constitution and the anti-assignment provision of the USFSPA.A parallel campaign in the context of Social Security benefits has occurred since the Mansell decision in 1989. Consequently, state courts have applied no less than seven different interpretations of the proper scope of federal preemption under the Social Security Act. Such variation of interpretation of the scope of federal preemption not only affronts Congress’ goal of uniformity in the division of benefits, but it arguably deprives the participant spouse of the protection that Congress intended under the Act, and it militates against the equitable distribution of property between and among divorcing spouses.In May 2017, in Howell v. Howell, the United States Supreme Court seized the opportunity to clarify Congress’ intent for the scope of federal preemption in the context of military retirement benefits. However, the Court simply held that the limited issue addressed in the Howell case was governed by Mansell. Consequently, the Court shed no more light on the scope of federal preemption than it did in 1989. However, in its dicta, the Court suggested that if it were to address the issue that this paper addresses—the extent of the scope of federal preemption for military retirement and analogous federal benefits, which, arguably, would include Social Security—it would likely prescribe a broad or “total” preemption of state law.This paper discusses the seven different interpretations of the scope of federal preemption under the Social Security Act that state courts have adopted and applied, particularly since 1989, when the Court decided Mansell. It also discusses the Court’s May 2017 decision in Howell and predicts what, if any, effect the Howell decision will have on state courts that adopt any one of the respective seven approaches that are currently employed by all states—only a small handful of which comply with the requirements projected in Howell. This paper concludes that if the dicta in Howell were applicable, the application of state property distribution provisions in most states would be held to be unconstitutional under the Supremacy Clause of the United States Constitution. However, as this paper will describe, many state courts will hold that the decision in Howell, like the decision in Mansell, is inapposite to the context of Social Security. Therefore, notwithstanding the relevance of the Howell decision, this paper concludes that Congressional clarification is required to finally define the Constitutional scope of federal preemption that Congress intends to govern state courts obligated to equitably divide the marital property of divorcing spouses, when either one of whom have participated in Social Security
Sez Who? Critical Legal History Without a Privileged Position
Get PDFPublished as Chapter 30 in Oxford Handbook of Historical Legal Research, Markus D. Dubber & Christopher Tomlins, eds.
Scholars active in the Critical Legal Studies movement of the 1980s regularly attacked the scholarship of liberal legalist scholars by using a variety of then contemporary epistemological theories that argued for the impossibility of any observer attaining a neutral position from which to observe social activities. Somewhat surprisingly, liberal legalist scholars seldom turned this criticism back at the work of CLS scholars who themselves never criticized their own work as they did that of other scholars. The examination of several pieces of CLS inspired history of labor law shows how engaging in such self-criticism might have further strengthened this very strong body of scholarship.https://digitalcommons.law.buffalo.edu/book_sections/1363/thumbnail.jp
Civil Justice in the United States: How Access to Courts is Essential to a Fair Economy
No full textAmericans depend on our civil courts to keep the economy on a fair and firm foundation, but a decades-long campaign to limit access and tamp down awards to injured parties has left courts with diminished power. In an era of rising economic insecurity and inequality that has left many individuals and communities struggling to overcome disadvantages beyond their control, we need legislators and policymakers at all levels of government to take action to promote greater access to justice.
Too many individuals and families have seen their chances at economic advancement stalled or undone by injuries caused by unreasonably dangerous products and other irresponsible corporate behavior. This report focuses on four relevant case studies, each of which illustrate how these kinds of profound harms can deprive individuals and communities of a meaningful opportunity to participate in the economy. These case studies include: The opioid crisis that has led to thousands of deaths and addictions and the destruction of families and communities across the country. The pollution from factory farms that raise thousands of hogs in confined spaces without using state-of-the-art management practices for the tons of manure generated daily. The Wells Fargo fake account scandal that resulted in the theft of millions of dollars from consumers who did not know about the accounts. The injuries to first responders, the significant property damage, and the disruption of entire “fenceline” communities located next to a chemical manufacturing plant that failed to safely shut down prior to Hurricane Harvey.
In a fair economy, people who suffer an injury or are hurt economically by someone else’s irresponsible behavior are compensated adequately so that they may have the opportunity to achieve their full potential. Our civil courts play a key role in pursuit of this vision for our society. They provide an orderly process for victims to seek compensation when they are injured, and the resulting decisions about liability help govern our interpersonal actions to prevent or avoid future injuries. When the courthouse doors remain open to help everyone, regardless of social or economic standing, even the wealthiest individuals and the largest and most powerful corporations can be held accountable.
When the courthouse doors remain open to help everyone, regardless of social or economic standing, even the wealthiest individuals and the largest and most powerful corporations can be held accountable.
The four case studies illustrate how the pursuit of civil justice is able to contribute to a fair economy in each of these ways. “Civil justice” refers to holding people and corporations accountable for their actions (or in some cases, their inaction) through laws and procedures that ensure fair compensation for anyone harmed.
For civil justice to play this role, Americans require full and unfettered access to the courts. They look to their elected officials to remove barriers that might block such access. Over the years, teams of corporate lobbyists and lawyers have successfully pressed for legislation and devised consumer contract provisions that hobble the effective functioning of our courts as a check on the behavior of the politically and economically powerful. Three strategies in this campaign are: Barring the courthouse door through forced arbitration and onerous requirements that deserving plaintiffs must satisfy before they are eligible even to initiate a claim; Dividing and conquering plaintiffs with measures that prevent or limit access to class action litigation; and Shifting the burden to the victim with arbitrary caps or limits on the amount or type of damages available to prevailing plaintiffs.
While this campaign continues, individuals continue to stand up to the people and companies that have harmed them, as the case studies illustrate. With the aid of enterprising attorneys, they are using the courts to address harms that can contribute to social inequality.
People have turned to the courts in all of these cases because government standards for preventing these kinds of harms were inadequate or their enforcement was too feeble. Regulatory agencies’ budgets and staffing levels have failed to keep pace with our expanding economy, and as a result, agencies have limited capacity to prevent harm and identify and respond to new hazards. This trend, viewed in the context of rising economic inequality in the United States, underscores the value of our courts in providing individuals and families with an essential venue to seek compensation for their injuries. Our courts cannot reverse the rising economic inequality in the United States, but they can prevent the situation from becoming worse – if law and policy allow them to do so. As a nation, we are looking to lawmakers and advocates who believe in the importance of establishing a fair economy by guaranteeing meaningful access to the courts
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell
Get PDFReforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School. These monographs provide a unique, longitudinal, nationwide database. The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.
The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of the U.S. prison population. They reported that 49,197 individuals—4.5% of the people in their custody—were in restrictive housing. Extrapolating, we estimate that some 61,000 individuals were in isolation in U.S. prisons. This number does not include people in most jails or juvenile, military, or immigration facilities.
Two areas of special concern are the impact of mental illness and the length of time individuals spend in restrictive housing. Correctional systems use a variety of definitions for serious mental illness. Using their own descriptions, jurisdictions counted more than 4,000 prisoners identified as seriously mentally ill and in restrictive housing. Within the 36 jurisdictions that reported on the length of time people had been in segregation, most people were held for a year or less. Twenty-five jurisdictions counted more than 3,500 individuals held more than three years.
Reforming Restrictive Housing details policy changes tracking the impact of the 2016 American Correctional Association’s (ACA) Restrictive Housing Performance Based Standards. The ACA Standards call for limiting the use of isolation for pregnant women, juveniles, and seriously mentally ill individuals.
This monograph also compares the responses of the 40 prison systems that answered the ASCA-Liman surveys in both 2015 and 2017. See ASCA-Liman, Aiming to Reduce Time-in-Cell (Nov. 2016), SSRN No. 2874492. The number in restrictive housing was reported to have decreased from 56,000 in 2015 to 47,000 in 2017. Looking at specific states, in more than two dozen systems, the numbers in segregation decreased. In 11 systems, the numbers went up.
A related monograph, Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes, details the work of four correctional administrations to limit—and in one state abolish—holding people in cells 22 hours a day for 15 days or more
Agency and Insanity
Get PDFThis Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.According to the lost-agency theory, a person lacks a sense of agency when he experiences his mind and body moving but doesn’t experience himself as the author or agent of those movements. The title character in the movie Dr. Strangelove suffered from what’s known as alien hand syndrome. People suffering from this syndrome experience the moving hand as their hand but don’t experience themselves as the author or agent of its movements. The lost-agency theory portrays insanity as alien hand syndrome writ large. The insane actor is like someone possessed by an alien self. He’s not in charge of his mind or body when he commits the crime
Now We Know Better: A New Legal Framework on Sex to Better Promote Autonomy, Equality, Diversity and Care for the Poor
Get PDFOver especially the last 50 to 60 years, US laws and policies concerning the sexual relationships between men and women have more consciously articulated a need to pursue social justice according to the categories of autonomy, equality, diversity and care for the poor. These categories are admirable on their face and responsive to the times in which they emerged. They are particularly well-suited to the history of discrimination against women and African Americans in the US. They were strongly influenced, inter alia, by the development of contraceptive technology and an array of social welfare initiatives, the rise of feminism and civil rights, and a growing belief in the importance of sexual happiness. The laws and policies designed to achieve these goals, however, are currently insufficient. They relied on various presumptions about human preferences and behaviors, children’s needs, and the relationship marketplace — especially among the poor — which proved inadequate or false. Consequently while these categories remain relevant and important, US law and policy concerning sexual relationships need to be updated and rebalanced in order to achieve progress toward equality, autonomy, diversity and care for the poor