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Professor Sugarman's Contribution to Public Health Scholarship
No full textI first met Steve Sugarman at an annual meeting of the Association for Public Policy Analysis and Management (APPAM), probably in the early 1990s. As a teacher of torts, among other things, I had of course read some of his often seminal, always bracing torts scholarship-especially his iconoclastic, pathbreaking book Doing Away with Personal Injury Law (1989).' There, he went far beyond existing no-fault thinking and other incremental tort system reform proposals to urge a far greater reliance on regulatory and entitlement programs, which he would expand and refine. This theme-greater reliance on government entitlements-has been a constant in the immense Sugarman oeuvre. Sure enough, at the APPAM session where we met as joint panelists, Sugarman was at it again-with a paper explaining how workers could be better protected through a plan for regulatory entitlements, some contributory, which would maximize workers' benefits, flexibility, and protection against workplace interruptions. Attention to justice in the workplace has been another significant motif in Sugarman's work, albeit not one that I explore here. Like all of Sugarman's policy proposals, the worker-benefit scheme cleverly exploited the resources, interstices, and limitations of government and market arrangements to improve social welfare and fairness to individuals. Interestingly, for all his policy boldness, he has never been a pie-in-the-sky, start-from-scratch reformer. Instead, Sugarman begins with existing arrangements and institutions. He then assesses their strengths and weaknesses and proposes policy changes that seem only incremental but might move the ball way down the field (to use a tired sports cliche that even the indefatigable Sugarman surely deployed when he taught sports law).
The organizers of this Festschrift asked me to discuss Sugarman's work in the area of public health. It is a pleasure to do so. It is also a valuable relearning experience, given his major contributions to this literally life-and-death field, a field that the COVID-19 pandemic has elevated to its proper place in the policy universe. Before getting into Sugarman-on-public-health proper, I note that almost all of his work, even when not denominated as focused on public health, bears closely on it. One example, to which I've
already referred, is workers' rights. Another policy area that bears closely on public health-the education of children who grow up in and around poverty had been of special concern to Sugarman from the beginning of his academic career a half century ago. As his and others' work has shown, the quality of poor children's educational experience (in terms of teaching, textbooks, other
resources, and classroom discipline) and the quantity of their education (affected by dropout rates, illness, truancy, suspension, and expulsion) affect their health, with the causality going in both directions.
More recently, Sugarman's scholarship has focused on public health per se, especially his extensive work on how to combat the public health scourges of obesity, tobacco, alcohol, and unhealthy foods. This work-a deeply felt preoccupation, really-began well over a decade ago. The remainder of my contribution will focus on it
Writing the Dissent in Abrams
No full textMuch has been written about how Oliver Wendell Holmes, in November 1919, came to write his pathbreaking dissent in Abrams v.
United States,' which virtually invents First Amendment doctrine. The most complete account may be found in Thomas Healy's superb book, The Great Dissent Holmes's accomplishment in Abrams is all the more astonishing because eight months previously, in March 1919, Holmes had authored decisions sustaining criminal convictions for those who had dared to speak out against World War I. Holmes's friends and supporters were appalled by these opinions, most especially by Debs v. United States, in which Holmes upheld the conviction under the Espionage Act of 19174 of a prominent socialist leader for what amounted to a political speech
opposing American participation in the war.5 In Debs, Holmes deemed First Amendment protections irrelevant if political speech had its "natural tendency and reasonably probable effect to obstruct the recruiting service" of the United States. Virtually all anti-war speeches, and certainly all successful anti-war speeches, have this tendency and effect.
Throughout the spring and summer of 1919, Holmes "was both defensive and defiant" about his opinion in Debs.7 He went so far as to draft (but not send) a letter of protest to Herbert Croly, editor of The New Republic, a magazine normally appreciative of Holmes. But even The New Republic had published an article sharply critical of Debs. Holmes wanted to say to Croly:
I hated to have to write the Debs case ... and I think it quite possible that if I had been on the jury I should have been for acquittal but I cannot doubt that there was evidence warranting a conviction on the disputed issues of fact. Moreover, I think the clauses under consideration not only were constitutional but were proper enough while the war was on. When people are putting out all their energies in battle I don't think it unreasonable to say we won't have obstacles intentionally put in the way of raising troops-by
persuasion any more than by force. But in the main I am for aeration of all effervescing convictions-there is no way so quick for letting them get flat
Introduction: History, Ideology, and the Crisis of Legal Critique
No full textThis symposium occupies the intersection of recent developments in the vicissitudes of critique. One is the ongoing discussion across the humanistic disciplines about whether critique—the standard mode of humanistic argument for decades—has had its day, or is in need of critique itself. And, more particularly, the symposium asks: how has this discussion been received in the domain of critical legal theory, if it has been received at all? A prominent thread in the pages that follow is a renewed question about the viability of Marxism—perhaps the ur-version of critique.
Ironically, Marxism has had a complex or even distant relation to the dominant modes of critique in recent decades, both inside and outside the legal academy. With another wave of interest in the 1960s, the Marxist theories that were emphasized as time passed tended to represent Marxism’s culturalist forms (pre-eminently the work of the Frankfurt School). But all varieties of Marxism suffered in relation to post-Marxist social thought, including various forms of poststructuralism. Yet especially since the
economic crisis of 2008, many believe Marxism needs to come back—and in its economistic and even materialist forms—for legal critique to be “truly” possible.
The contemporary manifestation of the “critique of critique” dates at least as far back as Bruno Latour’s question in 2004: “Why has critique run out of steam?”1 Since then, a number of voices among literary critics—Rita Felski’s most notably—have gone further, flirting with the resuscitation of an appreciative mode of engagement with even deeply compromised works from the past. This approach is grounded on the notion that treating canonical works as irredeemable loses touch with the original purposes of literary study, all while forsaking constructive impulses and normative grounding. For some, that concern courts an even worse risk of restoring a status quo ante of belletristic complacency. But there is no doubt that— especially in an age of declining interest in critical theory—such arguments have had a powerful effect. The positions pro and con are, of course, only partly applicable to legal scholarship. It had never been in the business of a kind of pre-critical model of scholarship grooming its readers to appreciate
law in the same way aesthetic discourses did. But legal scholarship certainly had its canon of cases, and its doctrinal and historical work could imaginably return to fashion if it were decided that legal critique has had its day
The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller
No full textThis Article examines the departmental structure of the executive branch, which facilitates, channels, and delimits the exercise of executive power. This structure is grounded in the text of the Constitution, which refers to “Department[s]” in the Necessary and Proper Clause, Appointments Clause, and Opinion Clause. The concept of the department also played a key role in the Framers’ constitutional theory of checks and balances. Public law has implemented the scheme that constitutional text and theory outlined. Legislation, case law, and executive branch practice have constructed departments within the executive branch as durable repositories of authority that distribute and rationalize power. Departmental protections against official arbitrariness have been tested in recent events, such as the Special Counsel Investigation, the effort to add a citizenship question to the census, and controversies concerning the leadership of the Consumer Financial Protection Bureau. The departmental structure of executive power must be maintained with renewed investments from each of the constitutional branches
Critical Legal Studies and Marx’s Critique: A Reappraisal
No full textKarl Marx never offered fully developed critiques of law or the state, let alone theories of jurisprudence or legal history. Many Marxists subsequently made the attempt—but efforts to articulate Marxian conceptions of law and state have often foundered on the limitations of relying on compressed or polemical claims in Marx’s early texts. Nevertheless, the elaboration of Marx’s critique of political economy necessarily involves critical inquiry into law. Legal relations are mutually constitutive with other social relations; law is a crucial moment in the totality of capitalist social relations. Critical inquiry into capitalism’s history requires attention to (among other things) law and jurisprudence. In the words of historian Jairus Banaji, the forcible creation and regulation of labour-markets are an intrinsic feature of capitalism and Marxists need to abandon the naïve view that law somehow stands “outside” this process and is not intrinsic to it. Duncan Kennedy and his colleagues in “Critical Legal Studies” demonstrated as much in the 1980s
Agency Costs, Corporate Governance, and the American Labor Union
No full textAcute agency costs exist in unions as they do in other complex organizations. Specifically, union officials are imperfect representatives of the rank-and-file workers they ostensibly represent. Yet far less attention has been paid to addressing agency costs in the context of unions than in the context of public corporations, where the separation of share ownership and managerial control long has been the subject of intense scrutiny by academics and policymakers. By contrast, concrete suggestions for
confronting agency problems in unions on the ground are few.
This Article posits that unions would be more successful in attracting new members and in securing benefits for existing members if unions could reduce agency costs. Workers who think that unions are corrupt and incapable of faithfully representing their interests in the workplace rationally will eschew union membership. The lack of focus on agency costs in the union context appears to be based on ideological and political considerations that conflate the interests of workers with the interests of union officials. But the interests of workers and union officials diverge in significant ways. Workers are concerned with job security, wages, and
working conditions, and union officials are concerned with maximizing the private benefits of their office, often at the expense of workers.
To reduce agency costs, this Article proposes a strategy of policy arbitrage consisting of identifying effective mechanisms for controlling agency costs in the corporate context that can be transferred to the union context, and shows how such arbitrage could be accomplished I identify four corporate governance mechanisms as particularly promising candidates for import into the union context. First, proxy advisory firms could be employed to provide rank-and-file workers with high-quality advice about how to vote in union elections. Second, existing disclosure obligations under the Landrum-Griffin Act should be both enhanced to include
better disclosure of union officials' compensation and "weaponized" by providing rank-and-file workers the right to vote up or down on such compensation through the provision of what are known in the corporate context as "say-on-pay" voting rights. Third, following Securities Exchange Act Rule 14a-8, union-voting procedures should be reformed to give workers the right to make proposals that are distributed, along with the union's voting materials, at the union's expense, to workers for their approval. Allowing rank-and-file workers to make direct appeals to other rank-and-file workers would enable workers to recommend internal governance reforms of unions and empower them to nominate rival slates of directors and officers for their unions. Finally, following well-established norms of corporate governance, unions should be required to have independent directors on their governing boards. The responsibility for nominating union directors, determining compensation for top union officials, setting internal governance rules, and selecting the union's independent, outside auditors should be removed from the board as a whole and delegated to committees consisting of these independent board members
Reviewing Administrative Review
No full textIn the largest system of federal adjudication—Social Security disability adjudication—outcomes depend more on the randomly assigned judge than on the strength of the case. Does the administrative appeals process use resources effectively to reduce that arbitrariness and limit the discretion of administrative law judges? If not, how and why does it fail? These are empirical questions, and this Article uses a new dataset tracking millions of cases to answer them. A system of administrative appeals that efficiently limits the discretion of decisionmakers should display three empirical patterns. First, disappointed claimants should be more likely to appeal the decisions of harsher judges—judges who have lower grant rates than their colleagues in the same hearing office (claim selection). Second, when claimants appeal, harsher judges’ decisions should be reversed more often than the decisions of their more generous colleagues (decisionmaking). Third, judges should try to avoid remands and therefore increase their grant rates after a reversal (remand aversion). Testing for each of these patterns offers a method of diagnosing problems with systems of administrative review—and helps identify where new resources would be most useful. For example, if litigants rarely appeal decisions of even extreme adjudicators, a quality assurance process might solve the problem by randomly selecting cases for review. If appellate decisionmaking itself is flawed, peer review may be more promising. And if adjudicators are insensitive to remands, training and feedback might be appropriate
What Do Lawyers Contribute to Law and Economics?
No full textThe law-and-economics movement has transformed the analysis of private law in the United States and, increasingly, around the world. As the field developed from 1970 to the early 2000s, scholars have developed countless insights about the operation and effects of law and legal institutions. Throughout this period, the discipline of law-and-economics has benefited from a partnership among trained economists and academic lawyers. Yet the tools that are used derive primarily from economics and not law. A logical question thus demands attention: what role do academic lawyers play in law-and-economics scholarship? In this Essay, we offer an interpretive theory of the practice of law-and-economics scholarship over the past 50 years that recognizes the distinct methodological tools of the academic lawyer. We claim that, in addition to the legal resources they provide to the economic analyst, academic lawyers have cognizable analytical skills, developed through their involvement in law as an applied discipline and their mastery of the common lawʼs analogical method of argument. We draw on the idea of analogical argument to explain some of the differences in the ways that economists and lawyers analyze some of the building blocks of our economy, including the relationship between formal and informal modes of enforcement and the reasons why inefficient boilerplate terms persist in certain standardized contracts. By enriching the standard economic model with insights from other disciplines and clarifying the connections among these disciplines, the lawyer provides skills that are critically important for advancing normative claims
Economic Challenges for the Law of Contract
No full textThis Essay introduces general equilibrium theory (GET) and mechanism design theory (MD) in a general sense (rather than in piece meal applications) to the study of contract law. As a positive matter, this introduction reveals three understudied areas: (i) when the equilibrium contract is individually rational but collectively irrational; (ii) the role of courts in market completion projects; and (iii) the implementation of renegotiation- proof mechanisms. As a normative matter, incorporating GET and MD insights into the study of contract law supports broad freedom of contract and formalist interpretative practices. Lastly, this Essay points to several areas for future research, highlighting the central role of law and economics analysis in identifying feasible mechanism design programs for contract law