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The Boundaries of Normative Law and Economics
No full textNormative law and economics remains controversial decades after its emergence despite its successes in legal scholarship and its similarity to influential approaches in economics. The reason is that many of its proponents have exaggerated its value for policy while discounting other methods, tainting the enterprise. Normative law and economics as a method of policy analysis properly operates within narrow boundaries defined by its four main premises: (1) welfarism based on unrestricted preferences; (2) unimportance of distributional effects; (3) unimportance of impacts on non-welfare values; and (4) rational instrumental behavior of affected persons. Scholars have made progress in normative law and economics by abstracting away from these premises. The most successful work proposes “modular” insights at a middle level of abstraction. But this work can be properly put to use only if the excluded factors are reintroduced into analysis prior to application
Towards a Governance Model of Ungovernable Prisons: How Recognition of Inmate Organizations, Dialogue, and Mutual Respect Can Transform Violent Prisons in Latin America
No full textUnfortunately, the most newsworthy aspect of detention centers in Latin America is their propensity to explode into horrendous violence: fires, uprisings (or riots) that claim the lives of dozens of detainees, and clashes between rival gangs or organized criminal groups, and mass escapes. Several thousand have perished in prison violence in Latin America in the past few decades-a single incident at the Comayagua Prison claimed the lives of 362 inmates in Honduras in February 2012.1 The underlying conditions that give rise to these collective acts of violence are well known and studied. Scholars have assessed the relationship between severe overcrowding, limited resources and poor services, and self-rule by detainees. Such self-rule is aggravated by high levels of violence and illicit markets within prisons.3 The combination is highly volatile and poses grave dangers to the lives and wellbeing of detainees, authorities, and often the larger society beyond prisons. Prison administration, and the corresponding literature on detention centers, mainly addresses the battle for control within detention centers. Study of informal organizations in prisons in
Latin America focuses on the exercise of control over daily life inside detention centers, including the extreme example of "self-rule by inmates." Unfortunately, the primary alternative to self-rule by detainees has been an authoritarian model in which prison officials control all aspects of inmates' lives, often through isolation, draconian policies, and violence.5 Until recently, prison
administration in Peru, the country that provides the main case study for this article, has alternated between these extreme and dysfunctional models. This article considers a novel approach to managing volatile detention centers applied in Peru for a decade (2011-2020) with promising results and we contend, the potential to transform prisons in Latin America.
In the 1980s, the National Penitentiary Institute of Peru-Instituto Nacional Penitenciario del Peru, INPE-largely abandoned its function as administrator of detention centers, leaving the National Police in charge.7 The National Police, of course, was an institution without specialized training in prison management. The result was informal organization by prisoners and the development of a system of entirely autonomous self-rule by inmates.8 The most emblematic case was the Lurigancho Penitentiary (the largest prison in the country), in which the detainees established their own fully functional internal organization, while the
police limited themselves to external control of the prison. The prisoners at Lurigancho quite literally held the keys to the jail.' They controlled entrance and exit from cells and cellblocks, decided which people and products could circulate, and imposed their own internal norms. In addition, to protect cellblocks from attacks by other detainees, prisoners maintained stocks of knives, firearms of various types, spears and even hand grenades."
Beginning in 2002, INPE began to retake control of prisons, but self-rule continued. In 2008, a report by National Geographic identified Lurigancho as one of the most dangerous prisons in the world, emphasizing how detainees exercised control and established internal rules. This same situation of selfrule, or self-rule by inmates, was primarily the norm in most of Peru's
penitentiaries
The Oversight Board’s Dormant Power to Review Facebook’s Algorithms
No full textVolume 39This Essay argues that Facebook’s Oversight Board—an independent “Supreme Court” for Facebook, tasked with reviewing the platform’s content-moderation decisions—has the additional power to review Face-book’s algorithms. While much of the literature on the Board assumes that it does not have this power, the text and structure of the Board’s Charter clearly provide for oversight of algorithms. This is an important observation because many of the serious problems plaguing online speech today—misinformation, radicalization, and community safety—are driven by algorithmic amplification. Equipped with the powers this Essay identifies, the Board could play a significant role in curbing the pernicious effects of algorithmic amplification of speech on Facebook
Foreword
No full textThis special issue reviews the breathtaking scope of Judge Stephen Williams’s work and his profound impact on administrative law. Steve was an extraordinary jurist and a wonderful man. As his colleague and friend, I take great pleasure in sharing some reflections on his life’s work. In his thirty-four years on the D.C. Circuit, Steve became one of the nation’s most admired judges. Everyone knew him for his warm collegiality; his precise, gentle questioning at oral argument; his analytical comments at conference; his wise, graceful, witty, and almost always persuasive opinions; and his fierce commitment to the rule of law
Should the U.S. Government Actively Assert Its Own Patents?
No full textOn March 10, 2021, our journal partnered with the Engelberg Center on Innovation Law and Policy to host a symposium addressing the role and impact of U.S. innovation policy on access to medicine. Our 2021 Symposium Issue—Volume 11, Issue 1—captures that event.*
The following article represents the second of four panels. This panel asked, “Should the U.S. government actively assert its own patents?” The panel was moderated by Christopher Morten, Deputy Director of NYU Law’s Technology Law & Policy Clinic. The panelists included Barry Datlof, Chief of Business Development and Commercialization in the Office of Medical Technology Transfer
at the U.S. Army Medical Research and Development Command, Professor Amy Kapczynski of Yale Law School, Donna Meuth, Associate General Counsel and Lead Attorney of the U.S. Intellectual Property Department of Eisai, and Zain Rizvi, a policy researcher at Public Citizen who focuses on pharmaceutical innovation and access to medicines
The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning
No full textThe meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court's recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that longstanding statutes are inherently dynamic because they inevitably evolve beyond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The
framework depends in part on courts defining 'meaning' properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism).
Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call
normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism create difficulties for originalism, but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). We explore the relationship among societal, linguistic, and
normative dynamism and their implications for original public meaning.
Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to "biological distinctions between male and female," as all the opinions in Bostock assumed, and that gender and sexual orientation were essentially nonwords in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, today's gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to "biological distinctions" and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law can assume in societal and linguistic dynamism: one reason gays and lesbians are a novel social group is that they live in a world where same-sex intimacy is not a crime and the state does not treat homosexuality as psychopathic
Race and the Cycles of Constitutional Time
No full textGuy Charles has pointed out to me that The Cycles of Constitutional Time ["Cycles"]' does not say a lot about race. Although statements about race, slavery, and Jim Crow appear at various points in the narrative, race is not an organizing theme of the book. And yet race - and the use of race as a political strategy - is behind many of my claims in Cycles. Charles's suggestion inspired me to write this Article, and to tell the story of the book by making race the organizing principle.
The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present.4 The third cycle is a series of episodes of constitutional rot and constitutional renewal.
Each of these cycles has deep connections to successive political struggles in the United States over race and racial equality. In each regime, the dominant electoral coalition is shaped by the politics of slavery (in the antebellum period) or race (after the Thirteenth Amendment). In several cases, the dominant coalition breaks down because of disputes about slavery or race. The cycle of polarization is highly correlated with attempts by politicians to make race, and more generally, identity, the central questions that divide the two major political parties. Finally, each period of constitutional rot in the country's history has been accompanied by deep polarization that is connected both to increasing income inequality and to party coalitions divided over issues of race
Marriage Equality's Lessons for Social Movements and Constitutional Change
No full textThe marriage equality movement won its first state victory in 2003, and within a dozen years fifty states were handing out
marriage licenses. The swiftness of the constitutional triumph was only possible because public opinion underwent a sea change in that period. Sexual and gender minorities achieved this remarkable turnaround once a critical mass, widely dispersed in the country, came out of their closets as committed couples (often raising children), and mainstream America found their stories more consistent with their own lives than they did a generation earlier. Other lessons of marriage equality's success, however, are how hard it is for a social movement to change longstanding norms and perspectives and how prejudice and stereotyping survive court victories and migrate to other issues and social groups
Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy
No full textIn a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservatives agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.
In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet our understanding of the Carolene Products framework dates not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representationreinforcing
judicial review that endorsed decisions protecting certain rights— voting, speech, and equal protection, specifically Brown v. Board of Education— and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.
With the benefit of the intervening forty years, this Article revisits and reassesses Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy-promoting,
but he argued his case on faulty premises. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants in the modern substantive due process cases—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.
What might this reconsideration of the modern substantive due process cases suggest about the ongoing debate over the role of federal courts in a constitutional democracy? This Article does not engage with the particulars of court reform, but it does shed light on certain fundamental premises of that debate. Our analysis rules out one commonly cited justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the modern substantive due process cases are the classic illustration. We show the many ways in which judicial intervention in these cases was democracy-promoting. As one looks at concrete lines of cases and structural features of courts, one can ask about the democracy-promoting and democracy-inhibiting ways that courts perform and pose more discriminating questions about the goals of court reform—whether to adopt reforms that make courts more independent, less polarized, more open, and more democratically responsive, or to limit their role in all or certain areas of a democratic order
The Road From Rhodes: The Impact of Double Celling on State Investment in Incarceration
No full textEdgar M. Cullen Prize
N. Parrillo, J. Resnik, S. Riethmueller
Best paper by a first-year studentExactly forty years ago, the Supreme Court decided Rhodes v. Chapman, holding that
Ohio’s practice of double celling prisoners did not violate the Eighth Amendment. In contravention
of American Correctional Association and architectural minimum standards, the practice has
since only continued to spread among prisons as a way to decrease the financial burdens of a
rapidly expanding prison population.
Both the COVID-19 pandemic and recent calls for prison abolition have brought the issues
of overcrowding and carceral investment to the forefront of the national consciousness. This essay
explores the financial costs of incarceration that states are able to avoid by virtue of their double
celling practices. First, this essay provides a historical context to double celling, surveying prison
space standards and variables designed to measure prison capacity, before drawing on Rhodes v.
Chapman as a case study for estimating Ohio’s avoided costs before and after Rhodes. Second,
this essay examines modern prison expenditures and overcrowding, using those figures to estimate
the costs that Alabama’s prison system—which spends the least on its inmates— is able to
currently externalize.
Both federal and state prison systems should internalize these costs. Currently,
governments simultaneously overinvest in the size of their carceral systems while underinvesting
in the quality of prisons. This situation allows for the development of a carceral policy
disconnected from the actual costs of incarceration. As a start, standards governing minimum
space requirements exist and should be enforced. Individual state legislatures have near-plenary
power over their prison systems, and Congress can provide incentives for states to comply with
humane standards. Congress has direct powers over the federal system, and the executive branch
can exercise control over the Federal Bureau of Prisons, an agency housed in the Department of
Justice. In addition, much of the confusion around whether or not prisons meet minimum standards
in the first place centers around inconsistent and incomplete data. Relevant government
authorities should mandate—or at least heavily incentivize—data collection and standardization;
otherwise, carceral systems will shield themselves through ambiguous and deficient data.
Permitting double celling has created perverse incentives for prison systems, providing
opportunities for prisons to minimize their financial costs at the expense of prisoners’ health and
safety. COVID-19 has shown us the devastating consequences of such policies. The time to act to
curtail Rhodes v. Chapman’s reach is now