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Tribute to Professor Doug Rendleman
No full textDoug Rendleman’s retirement will be a large change in my legal landscape. Doug and I share the often-neglected field of Remedies. Clients rarely care about a liability determination. The remedy is the bottom line of justice, as we once titled a symposium, and the plaintiff hasn’t recovered anything until she gets an effective remedy.
I never served on the same faculty with Doug, so I never knew him in his usual habitat. But I have known him from a distance for more than forty years. We would always get together, often for lunch but at least for a drink or a conversation, at the annual meetings of the Association of American Law Schools and the American Law Institute. We shared not just an interest in remedies, but in injunctions and equity in particular. For fourteen years, we served together as Advisers to the Restatement (Third) of Restitution and Unjust Enrichment, which brought us together a third time each year.
Doug is a link to the early days of remedies as a field. He began his career at Alabama in 1970, and taught a course called Remedies, from a casebook assigned to him by his senior colleagues. The book began with the forms of action—the pleading rules of the writ system, abolished by then in every U.S. jurisdiction, but still taught into the 1970s at a handful of American law schools
Willingness to Pay: A Welfarist Reassessment
No full textFrom a welfarist perspective, willingness to pay (WTP) is relevant only as a proxy for individual preferences or utilities. Much of the criticism levied against the WTP criterion can be understood as saying that WTP is a bad proxy for utility, or that WTP contains limited information about preferences. Specifically, critics of WTP claim wealth effects prevent it from serving as a good proxy for utility. I formalize and extend this critique by developing a methodology for quantifying the informational content of WTP. The informational content of WTP depends on how WTP is measured and applied. First, I distinguish between two types of policies: (i) policies that are not paid for by the individuals they affect and (ii) policies that are paid for by the individuals they affect. Second, I distinguish between two types of WTP measures: (i) individualized WTP and (ii) uniform, average WTP (like the value of a statistical life). When the cost of the policy is not borne by the affected individuals, individualized WTP has low informational content and increases wealth disparity. Uniform, average WTP has higher informational content and reduces wealth disparity, at least in the case of universal benefits. Therefore, when possible, a uniform, average WTP should be preferred in this scenario. When the cost of the policy is borne by the affected individuals, individualized WTP has high informational content but increases wealth disparity. Uniform, average WTP has lower informational content and indeterminate distributional implications. Here, the choice between individualized WTP and uniform, average WTP is more difficult
Deep Cuts: Four Critiques of Legal Ideology
No full textThis Article begins an effort to rekindle the intellectual tradition of critical legal theory. The context for the project is significant. On the one hand is the grip of a social crisis, the contours of which continue to confound the commentariat. Racism, xenophobia, gendered violence, migration and nation, climate change, health pandemics, political corruption. The parade is as intimidating as it is spectacular. On the other hand, the very tools of criticism we depend upon in identifying these characters in the parade, much less the spectacle of the parade itself, are themselves in crisis. There is, in a word, a crisis for critique itself. The working assumption of this Article is that these crises—crises in society and the crises of critique—are not unrelated. It is in this context that we believe in the need to revitalize the tools of critical legal studies, an intellectual songbook from the 1970s that deserves a 21st century reboot
Artificial Intelligence and Discrimination in Health Care
No full textArtificial intelligence (AI) holds great promise for improved health-care outcomes. It has been used to analyze tumor images, to help doctors choose among different treatment options, and to combat the COVID-19 pandemic. But AI also poses substantial new hazards. This Article focuses on a particular type of healthcare harm that has thus far evaded significant legal scrutiny. The harm is algorithmic discrimination. Algorithmic discrimination in health care occurs with surprising frequency. A well-known example is an algorithm used to identify candidates for “high risk care management” programs that routinely failed to refer racial minorities for these beneficial services. Furthermore, some algorithms deliberately adjust for race in ways that hurt minority patients. For example, according to a 2020 New England Journal of Medicine article, algorithms have regularly underestimated African Americans’ risks of kidney stones, death from heart failure, and other medical problems
Brevity, Speed, and Deference: An Account from the Williams Chambers
No full textOne of the leading books on administrative law advocates judicial review for “sound governance.”Reviewing the book while sitting on the D.C. Circuit, Judge Williams posited that, even if “judges are smarter than agency heads, or have more time on their hands, or have cleverer clerks,” the proper institutional role requires more deference. Divining “sound governance” is not for courts. The Judge concluded by quoting Milton’s poem about the role of the blind: “They also serve who only stand and waite.
Towards an Administrative Law of Central Banking
No full textA world in turmoil caused by Covid-19has revealed again what has long been true: the Federal Reserve is arguably the most powerful administrative agency in government, but neither administrative-law scholars nor the Fed itself treat it that way. In this Article, we present the first effort to map the contours of what administrative law should mean for the Fed, with particular attention to the processes the Fed should follow in determining and announcing legal interpretations and major policy changes. First, we synthesize literature from administrative law and social science to show the advantages that an agency like the Fed can glean from greater openness and transparency in its interpretations of law and in its long-term policy making processes. These advantages fall into two categories: (1) sending more credible signals of future action and thereby shaping the behavior of regulated parties and other constituents, and (2) increasing the diversity of incoming information on which to base decisions, thereby improving their factual and predictive accuracy. Second, we apply this framework to two key areas—monetary policy and emergency lending—to show how the Fed can improve its policy signaling and input diversity in the areas of its authority that are most expansive. The result is a positive account of what the Fed already does as an administrative agency and a normative account of what it should do in order to preserve necessary policy flexibility without sacrificing the public demands for policy clarity and rigor
Claim Durability and Bankruptcy’s Tort Problem
No full textBankruptcy has a tort problem. Chapter 11 predictably subordinates the claims of tort and other involuntary creditors to those of financial lenders, a fact which encourages firms to rely excessively on secured debt and discount the interests of those they might incidentally harm. For this reason, many scholars have advocated changing repayment priorities to move tort creditors to the front of the line. But despite broad academic support for a new “super priority,” the idea has yet to inspire legislative action. This Article proposes an alternative solution rooted in tort claims’ temporal durability. Chapter 11 subordinates tort claims only because of a convention that assets should emerge free-and-clear of prepetition debts if those who control the reorganization so elect. Bankruptcy courts could buck the convention and insist that tort claims follow a debtor’s assets out of Chapter 11 unless a deal otherwise is struck. The theoretical insight motivating our proposal is that durability and priority are close substitutes. In broad strokes, a super-durability norm should produce similar effects to a super-priority rule. In some respects, using durability may in fact be superior. It could avoid the need for costly, inaccurate judicial efforts to estimate the extent of debtors’ tort liability. It could also be implemented by judicial fiat and without new legislation. Whatever one thinks of implementation, taking claim durability seriously as a design variable raises questions—and extends recent debates—about when bankruptcy law needs to crystallize otherwise fluid legal relationships to achieve its ends
The Eventual Decline of Empirical Law and Economics
No full textThis Essay suggests the necessity of a co-evolutionary process among empirical and theoretical advances in law and economics. Empirical work alone is suggestive, but should not be taken too seriously. The weaknesses in empirical work, and by this I mostly mean regression-based work which has come to dominate law and economics, lead to a kind of virus that begins with over-statements and misapprehensions, and then spreads as more scholars copy the mistakes and engage in empirical work as a means of entry into the field. Regression-based work will become suspect as its current assumptions are questioned, and as replication failures reveal its weaknesses. Empirical work in law and economics looks very different when underlying distributions are not easily probed with regressions but are understood as reflecting power-laws, or as simply random. Once inconvenient distributions are acknowledged, the key question is why observations might be distributed in this fashion. This is likely to be a task for theorists as law and economics enters its next phase. On the other hand, empirical work has been important and has made law and economics a respectable science. The claim here is that good empirical work—especially in law and economics—is hard to produce, and it is important not to overvalue its products. Moreover, it is more useful when combined with good theory
Sanctuary Cities and the Power of the Purse: An Executive Dole Test
No full textA constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court precedent since South Dakota v. Dole, must be clearly articulated in advance, related to the underlying purpose of the federal funds, and not deemed coercive by the courts.
The Attorney General recently announced conditions on federal law enforcement grants that would defund police departments who do not cooperate with federal immigration officials. These new funding conditions
triggered legal challenges by a dozen jurisdictions under the Spending Clause. While the case law is clear that Congress may delegate its authority to add conditions on federal grants, two important questions remain unresolved: (z) does the authority to add conditions on spending inherently attach to delegations to implement federal grant programs or must that authority be delegated separately and unambiguously? and (2) are executive conditions subject to the same standards of clarity, germaneness, and non-coercion?
Recent threats by President Trump to withhold funding for elections, education, and public parks amplify the need for clarity on these questions.
In this Article, I argue that executive conditions on federal spending are unquestionably appropriate, but only when Congress has unambiguously delegated the authority to add conditions. This delegation should not act as a loophole in the Dole doctrine. In fact, because the central constitutional concern in Spending Clause cases is the undue aggrandizement of federal power at the (literal) expense of the states, I argue that executive conditions on federal spending should be subject to stricter limits than conditions imposed by Congress; inter-branch coordination poses a greater threat to state sovereignty than either Congress or the Executive acting alone. The upshot of stricter executive limits is that conditions on federal spending will likely shift away from the Executive to Congress, which may be desirable on accountability grounds.
Finally, the recent appointment of Justices Gorsuch and Kavanaugh to the Supreme Court have raised the stakes of this particular debate. Both of the new Justices have publicly articulated concerns about expanding federal power and federal administrative power in particular. The question of sua sponte executive conditions on federal grants-in-aid thus poses a ripe opportunity for skeptics of the administrative state to rein in the regulatory state while also narrowing the scope of the Spending Clause more generally
Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions
No full textThe expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades— and, in turn, that it has deeply affected administrative law and separation of- powers dynamics. Over the past several decades, the number of commissioners with prior service as a lawmaker or congressional staffer increased almost fourfold. Paradoxically, this sea change occurred during a period in which, according to conventional wisdom, Congress’s influence over administration declined. We contend that, faced with a set of worsening pathologies in Congress, lawmakers turned to appointments to influence policy making. At the same time, congressional atrophy and an increasingly rocky confirmation process combined to make executive posts more attractive to Hill staffers than to others