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The Trouble with Deneuve
No full textThe tired critique of #MeToo in France last week serves only to underscore why the new movement is so necessary, argues Prof. Lama Abu-Odeh
Brief for Urska Velikonja and Joseph A. Grundfest as Amici Curiae in Support of Neither Party in Lucia v. SEC, No. 17-130 (U.S. Supreme Court)
Get PDFThe amicus brief takes no position on the merits of this case and expresses no view as to its resolution. Instead, we write exclusively to address two empirical questions raised by the debate over the Commission’s reliance on administrative enforcement of the federal securities laws. First, is there statistically reliable evidence that ALJs systematically resolve cases in a manner that differs from the resolution of equivalent Commission actions filed in federal district court? Second, has the Commission steered a disproportionate share of contested proceedings to ALJs because the Commission is more likely to prevail before those ALJs?
The amicus brief reports on the findings of an empirical analysis that examines every enforcement action filed by the SEC from the beginning of fiscal year 2007 through September 30, 2017, the end of the SEC’s 2017 fiscal year, and resolved prior to January 1, 2018. Contrary to the suggestions that appear in the press and are cited in the briefing, there is no statistically reliable evidence that the Commission has a “home court” advantage before ALJs. We also find that the SEC has continued to litigate a large majority of contested proceedings in federal district court, and not before its ALJs. There is no statistically reliable evidence that the Commission is steering a disproportionate share of litigation to the administrative forum in order to capitalize on this non-existent advantage
Can Free Speech Be Progressive?
Get PDFFree speech cannot be progressive. At least it can\u27t be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even protect progressives against the possibility of catastrophic outcomes. But the notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. The American free speech tradition is too deeply rooted in ideas about fixed property rights and with an equation of freedom with government inaction to be progressive. Instead of wasting energy on futile efforts to upend our first amendment traditions, progressives should work to achieve their goals directly
A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers
Get PDFAdministrative law is fundamentally a regime of soft power. Congress, the President, administrative agencies, civil servants, and the courts all operate within a broad consensus for rational, good-faith decisionmaking. Congress grants agencies discretion, and courts and civil servants defer to agencies’ political leadership based largely on the expectation that the latter are seeking to honor statutes’ purposes. That expectation of prudential restraint also allays concerns about delegations of legislative power. When the executive systematically disregards that expectation and seeks single-mindedly to maximize achievement of its policy objectives, deference’s justification breaks down.
Across agencies, the Trump administration has disregarded the assumptions on which administrative law’s soft power consensus depends. Its waivers allowing states to deny Medicaid to otherwise eligible low-income people unable to find employment exemplifies this disregard. Exploiting a sweeping delegation of authority to test new ways to achieve Medicaid’s goal of providing health care coverage, this administration has instead sought to achieve very different goals, from legislation that Congress has rejected. The waiver applications themselves estimate substantial increases in the numbers of uninsured people.
Ignoring the administration’s disregard of the longstanding administrative law consensus could deter future Congresses from valuable delegations of discretion. Permanently abandoning the deferential soft-power model would seriously undermine future governance. Instead, courts and civil servants should treat this period as a hiatus in consensus for good-faith decisionmaking. Courts should suspend deference and other aspects of soft-power jurisprudence. And civil servants should comply with political officials’ lawful directions but should remain steadfastly truthful in their words and actions
The Tethered President: Consistency and Contingency in Administrative Law
Get PDFThe law governing administrative agency policy change and the checking of unjustified inconsistency is rooted in a web of intertwined doctrine. The Supreme Court’s 2016 opinion in Encino Motorcars modestly recast that doctrine to emphasize that the agency pursuing a change cannot leave “unexplained inconsistency” or neglect to address past relevant underlying facts, but reaffirmed its central stable precepts. Nonetheless, radically different views about broad, unaccountable, and agency power to make rapid policy changes have been articulated by Justice Neil Gorsuch while on the Tenth Circuit and by agencies pursuing deregulatory policy shifts under the leadership of President Donald J. Trump. This Article analyzes the mutually reinforcing strands of this body of law, shows the fundamental errors underpinning these claims of broad agency power to make policy changes, and explains how the “contingencies” underlying an initial policy action must always be engaged by a later advocate of policy change. Statutory language constrains agency action while usually leaving room for change, but facts and past agency reasoning—the heart of regulatory “contingencies” focused on in this Article—unavoidably must be engaged to surmount the sturdy core requirements of consistency doctrine. Recent efforts to overcome or recast consistency doctrine seek greater room for politics and presidential influence and downplay agency obligations to provide rational explanation and engage with regulatory contingencies. Due to the balanced interests protected by consistency doctrine, this Article argues that such a doctrinal reworking is unlikely and would be unwise
Reaching for Mediocrity: Competition and Stagnation in Pharmaceutical Innovation
Get PDFPatents might incentivize invention but they do not guarantee firms will invest in projects that maximize social utility. We model how risk-neutral firms’ ability to obtain substantial private returns on marginal new technologies causes them to “reach for mediocrity” by investing in socially-suboptimal projects, even in the presence of competition and new entrants. Focusing primarily on pharmaceutical innovation, we analyze various policy interventions to solve this underinvestment problem. In particular, we describe a new approach to patents – a value based patent system, which ties patent protection to the underlying invention’s social value – and show how it incentivizes socially-optimal innovation
A Beautiful Life in a Vibrant Yet Vulnerable City
Get PDFThis is a story about the death of my father, Joseph Gostin, just shy of his 102nd birthday. In an article last year, I wrote about the challenges of seeking care for my father in the last year of his life—and the kind of person-centered care, consistent with his wishes, that he received at Calvary Hospital in the Bronx, New York.
Here, as a tribute to my father, I bring into focus my father’s beloved home—New York City. As a kind of remembrance, I recreated my father’s Sunday ritual, a walk through the sights and neighborhoods, the diverse foods and languages that are New York. But worry creeps in. Despite one of the “world’s best” City Health Departments, it’s not clear whether prosperity will endure. My father’s city was, and is, full of vitality, but I sound a warning about the city’s future, one that all of us would do well to heed.
Companion piece: The “Great” Generation and a Not-So-Great Health System, 95 Milbank Q. 698-701 (2017). https://scholarship.law.georgetown.edu/facpub/2017
Self-Representation, Access to Justice, and the Quality of Counsel: A Comment on Rabeea Assy’s \u3ci\u3eInjustice in Person: The Right of Self-Representation\u3c/i\u3e
Get PDFRabeea Assy’s Injustice in Person: The Right of Self-Representation (Oxford University Press) offers a powerful argument against the right of self-representation in civil cases. Selfrepresentation is usually ineffective for the self-represented litigant, sometimes verging on suicidal, and it is inefficient for the courts, which have to deal with litigants who don’t know procedure, violate rules, and waste time with pointless and sometimes incoherent arguments. Furthermore, pro se litigants not only waste the court’s time, they waste their adversaries’ time and money, and impose opportunity costs on other litigants by clogging up the courts – so an unlimited right of self-representation may inflict collateral damage beyond wasting judges’ time and trying their patience. It is simply a mistake to think that self-representation is a partial solution to the problem of access to justice.
This commentary raises several concerns about his argument, focusing in particular on the dilemma facing litigants who realize too late that their counsel is incompetent, or who for whatever reason find it impossible to hire competent counsel in high-stakes matters. Based on these concerns, I suggest several categories of non-simple cases where his proposed mandatoryrepresentation rule should create exceptions: those where self-representation is the client’s only chance; those where the need to hire counsel changes an economically rational case into a loser; those where the client is actually indigent; prisoner petitions; and cases where counsel, possibly for valid paternalistic reasons, won’t provide clients with the voice to which they have a right
The AT&T/Time Warner Merger: How Judge Leon Garbled Professor Nash
Get PDFThe US District Court in the AT&T/Time Warner vertical merger case has issued its opinion permitting the merger. At of this writing in August 2018, the Department of Justice (DOJ) has appealed to the DC Circuit and filed its brief, as have several Amici. I was disappointed that the DOJ was unable to prove its case to the satisfaction of Judge Leon, the trial judge. Notwithstanding the court’s confidence that the merger is procompetitive, I remain concerned that it will have anti- competitive effects, both on its own and following the subsequent vertical mergers in the TV industry, which this decision may will encourage and permit.
This commentary offers some reflections on Judge Leon’s opinion, not the future of the industry. It sets out a critical analysis of the court’s sceptical treatment of the Nash bargaining theory that formed the basis of the DOJ’s complaint and the economic errors he made. Judge Leon also rejected the empirical inputs that were used by DOJ’s expert economist, Professor Carl Shapiro, in his quantitative analysis, though this article will not analyse these issues. It will, however, raise questions about whether Judge Leon’s economic errors in analysing the bargaining model might have affected his interpretation of the evidence. The commentary also will offer some critical thoughts about the DOJ’s treatment of efficiencies from the elimination of double marginalization
Ebola and War in the Democratic Republic of Congo: Avoiding Failure and Thinking Ahead
Get PDFThe Ebola epidemic in the Democratic Republic of Congo (DRC) is exceptionally dangerous, occurring within active armed conflict and geopolitical volatility, including a million displaced persons. With 421 cases, 240 deaths, and the numbers increasing, this Ebola outbreak is the second deadliest in history. Recent spread to Butembo, home to 1.2 million people, raised concerns. The DRC, World Health Organization (WHO), and partners are leading a vigorous international response, yet despite deploying an experimental vaccine, cases doubled in October 2018 and many cases had unknown origin.
Uncontrolled Ebola outbreaks can expand quickly, as occurred in West Africa in 2014. Averting that outcome in the DRC requires rapid action including a strengthened public health response, security, and community outreach. If violence escalates, it could compromise a fragile response. Yet resources are insufficient. The United States and other countries are not permitting personnel deployment to the epicenter, including from the Centers for Disease Control and Prevention (CDC) and US Agency for International Development (USAID).
In this Viewpoint, we review recommendations of experts convened by Georgetown University and listed at the end of this article. The United States and international community should launch high-level political mobilization, with diplomatic, human, and economic resources. It is critical to recognize that future health crises will occur in fragile, insecure settings. To prepare, the international community needs long-term planning and enhanced capacities to improve the safety and effectiveness of epidemic response operations