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A Regulatory Theory of Legal Claims
Get PDFProcedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions of legal claims tend to object to procedures that operate at the expense of claimant autonomy. Conversely, those who endorse collectivist views tend to downplay claimant autonomy. In the class action context, the debate between individualistic and collectivist views of legal claims has been waged as a proxy war between more fulsome and more limited availability of class procedures—a debate that has been rightly described as “intractable.”
This Article does not seek to resolve that debate, but to broaden it. The individualistic versus collectivist debate about legal claims arises not just in the class action context but in other contexts as well—a point long overlooked in legal scholarship.
Taking this broader view yields significant insights. It turns out that this conceptual debate has different implications for key normative questions in our litigation system and procedural law. For example, in the class action context, the individual-autonomy conception of legal claims is used as an argument for procedures that often frustrate access to justice. In litigation finance, individual-autonomy conceptions are critical to access. The debate between individualistic and collectivist conceptions of legal claims thus does not point consistently to any set of normative goals, but instead it cuts in precisely opposite directions.
Two central insights emerge from this stalemate. First, formalist theories of legal claims provide a poor baseline for determining the scope of litigant autonomy and for guiding procedural law. Second, they should be replaced by a theory for legal claims that not only accounts for, but also better aligns with, foundational normative goals of our litigation system.
This Article therefore proposes a regulatory theory of legal claims, which has three fundamental components. First, and drawing upon intellectual foundations of property, economic, and litigation theory literature, this Article posits that litigant autonomy over legal claims—though a strong norm—can be regulated in appropriate instances. Second, it provides a theoretical basis for the notion that the judiciary may appropriately regulate litigant autonomy over claims, including through procedural mechanisms. Third, it sets forth a key component of an overall theory of procedure itself— specifically, as appropriately directed toward regulating litigant autonomy to reduce transaction cost barriers to claiming. By then operationalizing this theory within various litigation contexts, this Article demonstrates in concrete ways how its regulatory theory of legal claims points a way forward on the resolution of numerous difficult questions in today’s litigation landscape
Global Health Security in an Era of Explosive Pandemic Potential
Get PDFPandemics pose a significant risk to security, economic stability, and development. Annualized expected losses from pandemics are estimated at 4.5 billion – 65 cents per person) to strengthen global preparedness, for the United Nations to play a greater role in responding to major global health and humanitarian emergencies, and for an effective and efficient R&D strategy with multiple stakeholders—governments, academics, industry, and civil society—identifying R&D priorities and leading a coordinated response. If our action plan were adopted, it would safeguard the global population far better against infectious disease threats. It would reap dividends in security, development, and productivity
The “Great” Generation and a Not-So-Great Health System
Get PDFMy travels usually take me to far-flung places, but today is different. I\u27m on a train to New York City, shuttling back and forth from Washington, DC. My father is 101 years old, and just one year ago he gave a 30-minute speech without notes at his centenary birthday celebration. He ended his speech saying, “I\u27m often asked how I lived so long. The answer is I just lived.” An uncomplicated man who lived a long and complicated life, staying mindfully in the present. Here is his story about a 101-year-old, decorated World War II Veteran, who our country and health system cannot seem to offer care and dignity at life’s end
Administrative Rights in Institutional Perspective
Get PDFThis response essay, written for the 2017 Duke Law Journal Administrative Law Symposium, comments on Karen M. Tani, An Administrative Right To Be Free From Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective, 66 Duke L.J. 1847 (2017).
Professor Tani\u27s essay places in broader context the much praised and much maligned campaign against sexual assault in schools and universities that the Obama administration\u27s Education Department undertook over the course of its final five years. The broader context, as she sees it, has two components: first, a historical one, about the rise in Congress and fall in the Supreme Court of the Violence Against Women Act, against the backdrop of insufficient state and local legal regimes punishing sexual violence; and second, an institutional one, about the potential limitations associated with federal administrative agencies articulating and vindicating novel rights. Both historical and institutional contexts are important, especially as the Trump administration prepares to undo the Obama administration\u27s campaign, for each offers a different way to identify the challenges and opportunities that lie ahead. My short response focuses largely on Tani\u27s institutional concerns and circles back to her historical lens at the end.
Tani identifies three potential limitations associated with administratively created rights in general, not solely in the context of the recent administrative expansion of Title IX: they may be weaker because they are filtered, or mediated, through regulated entities; because they are more vulnerable to change than other forms of lawmaking ; and because they tend to implicate only pockets of the population that might wish to claim the right. I agree that these limitations are present in administrative rights, but I am less certain than Tani is that these limitations flow from the limitations of the agencies themselves. Instead, I think that these limitations are associated with rights shaped by Congress and courts as well, as the rest of this response elaborates.
My expansion of Tani\u27s tripartite description of limited rights leads me to the same conclusion as Tani, though: those who wish to expand the nature of American citizenship to see all people as rights-bearing individuals will continue to pursue those claims in whatever forum is available. I simply want to suggest that the agency as a forum for rights claims is no worse, but also no better, than other potential fora. Taking the long view, as Tani invites us to do, this equivalence matters
Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign
Get PDFBeginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bête noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born.
The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns.
In this Article, I argue that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage.
In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments.
The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships.
These pivot points include: The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach; The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage.
This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability
The Raising Rivals\u27 Cost Foreclosure Paradigm, Conditional Pricing Practices, and the Flawed Incremental Price-Cost Test
Get PDFThere are two overarching legal paradigms for analyzing exclusionary conduct in antitrust – predatory pricing and the raising rivals’ costs characterization of foreclosure. Sometimes the choice of paradigm is obvious. Other times, it may depend on the structure of the plaintiff’s allegations. Some types of conduct, notably conditional pricing practices (CPPs), might appear by analogy to fit into both paradigms. CPPs involve pricing that is conditioned on exclusivity or some other type of favoritism in a customer’s purchases or input supplier’s sales. The predatory pricing paradigm would attack the low prices of CPPs. By contrast, the RRC foreclosure paradigm would attack the condition. The analysis in this article concludes that CPPs are better characterized as belonging to the RRC foreclosure paradigm and evaluated under a rule of reason standard that focuses directly on harm to competition and consumers. The impact of foreclosure should not be measured mainly by the fraction of customers or suppliers affected. Rules that artificially narrow concerns to whether the competitors are able to reach minimum viable scale or minimum efficient also are flawed. Foreclosure instead should be gauged primarily by the impact on the competitors’ costs, output, capacity, and ability to enter and expand. The analysis also explains that the fundamental focus of analysis is the impact of consumers in the output market, not the impact on competitors. The article also explains in detail why concerns about conditional discounts should not be screened with an incremental price-cost test. That test is not reliably administrable and it leads to substantial false negative and false positive errors that will harm consumers and competition. It also is not required for counseling purposes
Home Rule in an Era of Local Environmental Innovation
Get PDFAs 2016’s national election made clear, striking ideological differences between cities and their surrounding states exist in many parts of the country. One way this divide is manifesting itself is in state governments passing laws with the sole purpose of outlawing particular local conduct. For instance, recent state legislation has prohibited local governments from establishing a minimum wage, from prohibiting the use of plastic bags, and from protecting the rights of transgender individuals to use the bathroom of their identified gender. These state actions do not create substantive law; instead, they merely curtail the grant of authority—known, broadly speaking, as home rule—to municipalities.
State override of local action in this way undermines the ability of local governments to address many kinds of harm. Local efforts to combat environmental issues seem particularly vulnerable to obstruction by state legislators. The trouble is, under traditional frameworks of state and local government law, this kind of targeted removal of local authority is likely justifiable. In consequence, legal scholarship on environmental localism has generally conceded failure within the home rule framework and looked only outside it for solutions to this problem. This Article explores whether acceptance of defeat in the face of state prohibitions on particular exercises of local environmental authority is warranted, and whether there is any path forward for local environmental policymaking within the traditional framework.
Very generally, I propose that elements of environmental law—namely, state constitutional provisions and the public trust doctrine—may in fact offer a substantive basis for support of local authority in the face of targeted state removals of authority. By making these elements part of the home rule analysis, courts may be able to provide some protection against targeted removals of local authority
Religious Difference in a Secular Age: The Minority Report by Saba Mahmoud (2016) Book Review
Get PDFThe Minority Report is a text that tries to respond to the problem of essentializing Islam (the culturalism problem) by performing a flip so that all the bad attributes typically associated with “Islam” are now attributed to secularism instead. It is secularism that discriminates, that is sectarian, that encourages violence, that is repressive, sexist, etc. This Mahmood does by on the one hand hyper-politicizing secularism (depleting it of its universalist drive), and on the other under-politicizing it by ignoring its internal indeterminacy, complexity, open structure and varied distributive effects. The result is an account that moves between crude historicism-secularism is its history- and formalist generalizations reminiscent of the ways “Islam” is treated in mainstream discourse. Islam is nothing but the history of its conquests and its doctrines create the world in a specific way.
But a flip does not a critique make
Here Today, Gone Tomorrow--Is Global Climate Change Another White Man’s Trick to Get Indian Land? The Role of Treaties in Protecting Tribes as They Adapt to Climate Change
Get PDFIndian Tribes are at the tip of the spear when it comes to climate change. Their dependence on their homelands for subsistence and cultural sustenance has made them vulnerable to climate-driven changes like sea level rise, shoreline erosion, and drought. As climate change makes their land less suitable for the animals and plants they depend on, tribes are facing increasing pressure to move to survive. Complicating any such move is its effect on tribal treaties that grant tribes sovereignty over their traditional land and their members. If tribes are forced to sever themselves from their homelands, will that affect their sovereignty; can their treaties migrate with them as they move to new land; where can tribes move to that will enable them to survive as distinct political sub-units in our federal system of government; and will these treaties make their assimilation into any new community impossible? This Article looks at these and many other questions in an attempt to understand how climate change may affect tribes as we know them today and begins to answer some of them. However, there are too many questions to answer in a single article. Therefore, this Article’s major contributions are identifying the problem and related questions and then proposing an analytical framework that separates legal from moral questions, and practical from constitutive ones, and contextualizes these questions in a rapidly changing physical world. Developing and applying this framework may help identify which institutions should try and answer the various questions raised in the Article, what tools they might be expected to use, and in what order the questions should be addressed
Law for the Platform Economy
Get PDFThis Article: explores patterns of legal-institutional change in the emerging, platform-driven economy. Its starting premise is that the platform is not simply a new business model, a new social technology, or a new infrastructural formation (although it is also all of those things). Rather, it is the core organizational form of the emerging informational economy. Platforms do not enter or expand markets; they replace (and rematerialize) them. The article argues that legal institutions, including both entitlements and regulatory institutions, have systematically facilitated the platform economy\u27s emergence. It first describes the evolution of the platform as a mode of economic (re)organization and introduces the ways that platforms restructure both economic exchange and patterns of information flow more generally. It then explores some of the ways that actions and interventions by and on behalf of platform businesses are reshaping the landscape of legal entitlements and obligations. Finally, it describes challenges that platform-based intermediation of the information environment has posed for existing regulatory institutions and traces some of the emerging institutional responses