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To Thine Own Self Be True? Incentive Problems in Personalized Law
Get PDFRecent years have seen an explosion of scholarship on “personalized law.” Commentators foresee a world in which regulators armed with big data and machine learning techniques determine the optimal legal rule for every regulated party, then instantaneously disseminate their decisions via smartphones and other “smart” devices. They envision a legal utopia in which every fact pattern is assigned society’s preferred legal treatment in real time.
But regulation is a dynamic process; regulated parties react to law. They change their behavior to pursue their preferred outcomes— which often diverge from society’s—and they will continue to do so under personalized law: They will provide regulators with incomplete or inaccurate information. They will attempt to manipulate the algorithms underlying personalized laws by taking actions intended to disguise their true characteristics. Personalized law can also (unintentionally) encourage regulated parties to act in socially undesirable ways, a phenomenon known as moral hazard.
Moreover, regulators seeking to combat these dynamics will face significant constraints. Regulators will have imperfect information, both because of privacy concerns and because regulated parties and intermediaries will muddle regulators’ data. They may lack the authority or the political will to respond to regulated parties’ behavior. The transparency requirements of a democratic society may hinder their ability to thwart gamesmanship. Concerns about unintended consequences may further lower regulators’ willingness to personalize law.
Taken together, these dynamics will limit personalized law’s ability to optimally match facts to legal outcomes. Personalized law may be a step forward, but it will not produce the utopian outcomes that some envision
Against Congressional Case Snatching
Get PDFCongress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of the Article III courts, and both should be deemed to violate the separation of powers doctrine. Unfortunately, however, the Supreme Court’s institutional response to this troubling new trend of congressional reassignment of core judicial business has been (at best) halting, tepid, and weak. In a trio of recent decisions, the Justices have given Congress a green light to direct merits results in pending litigation before the Article III courts ( Patchak v. Zinke and Bank Markazi v. Peterson) and also blessed giving disgruntled litigants the unfettered right to remove pending judicial business from an Article III court to an Article II agency (Oil States Energy Services v. Greene’s Energy Group).
These three decisions reflect a regrettable return to functionalist analysis in separation of powers disputes involving threats to the structural integrity and independence of the Article III courts. Simply put, vesting the “judicial power” in the federal courts means that judges, not members of Congress, must decide how to interpret and apply the law. This is, after all, the central holding of Marbury v. Madison. Under well-settled separation of powers principles, Congress should not be permitted to aggrandize itself by usurping the decisional authority of the Article III courts. Nor should Congress be empowered to render ongoing federal court proceedings entirely advisory by vesting a litigant who fears an adverse decision with the unilateral power to force a remand of a pending lawsuit to a potentially more sympathetic federal administrative agency. Alexander Hamilton, writing in The Federalist Papers, presciently observed that the judiciary constitutes the least dangerous branch of the federal government. If this is so, it also means that the judiciary is the weakest of the three branches. Separation of powers doctrine and practice must take account of this important structural reality. Vindicating the Madisonian system of checks and balances requires that congressional case snatching, in all of its forms and manifestations, must be categorically resisted and rejected
Lending a Hand Instead of Breaking the Bank: The Imperative Need to Resolve the Circuit Split for Determining Undue Hardship for Section 523(A)(8) Student Loan Discharges
Get PDFThe Bankruptcy Code permits petitioners to discharge their student debts if they are able to demonstrate that their loans impose an undue hardship. Somewhat frustratingly, the Code does not define what exactly constitutes undue hardship in the context of student loan discharges. Moreover, neither Congress nor the Supreme Court has broken its silence to offer guidance on the issue. As a result, the rest of the federal judiciary has been once again, left to its own devices.
Over the past few decades, the Brunner and totality-of-the-circumstances tests have emerged as the standards that federal circuits choose between to assess whether student loan repayment would cause the petitioner undue hardship. Although an overwhelming majority of circuits has endorsed the Brunner formulation, the test is considered by many to set an impossibly high burden for petitioners to surmount.
This Note argues that the circuit split for determining undue hardship is purely illusory. The plain wording of both the Brunner and totality-of-the-circumstances formulations indicates that there is no real difference in the substantive inquiry conducted by each test. Rather, the divergence stems from a history of a retributive dicta being wrongly imputed to the Brunner standard. This Note argues that if the Brunner Standard is properly applied, the notion of a circuit split will be dispelled. Furthermore, this Note also encourages Congress to assist the judiciary by providing guidance on how it defines undue hardship
Working on the Other Side of the Fence: Relief for Incarcerated Individuals After Employment Discrimination
Get PDFOne of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” job opportunity. This Note will demonstrate that the distinction between forced and optional labor made by the circuit split is untenable today. Further, regardless of what test determines “employee” status, this Note proposes courts should find incarcerated workers to be employees and thus covered under employment discrimination statutes. All workers deserve to be, and should be, protected by the courts from discrimination in the workplace regardless of their incarceration status. To recognize the employee status of incarcerated workers would be to fulfill the purpose of the statutes by protecting vulnerable workers and creating a safer work environment
Undue Deference to States in the 2020 Election Litigation
Get PDFCOVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.
In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly tailored to achieve the state’s goals? A court will force a state to satisfy the first prong by demonstrating a “compelling” interest under strict scrutiny or still an important interest under lower intermediate-level scrutiny. The Court has adopted a similar test for election litigation, using the framework from two cases, Anderson v. Celebrezze and Burdick v. Takushi. If an election law imposes a severe burden on voting rights, then the Court applies strict scrutiny review. But under this Anderson-Burdick framework, when a law does not create a severe burden on voters but still impacts the right to vote, courts must apply intermediate-level scrutiny by identifying “the precise interests put forward by the State as justifications for the burden imposed by its rule” and determining “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Six years ago, I wrote a law review article that explained how the Supreme Court has too readily deferred to states in how to run their elections, derogating the constitutional right to vote in the process. “Without identifying a specific new rule, the Court has been unjustifiably deferring to state laws regarding election administration, thereby giving states tremendous power to regulate elections.” As I recounted, the Court had essentially failed to require states to offer “precise interests” to justify a restrictive voting rule or explain why “those interests make it necessary to burden” the right to vote.
The problem has only become worse as a renewed, undue deference doctrine has emerged. The Court has not explicitly overruled the Anderson-Burdick test, but its jurisprudence and the case law from the circuit courts of appeals in 2020 demonstrates that there is little federal judicial protection for the constitutional right to vote. This undue deference to state legislatures and election officials helps to explain why voting rights plaintiffs lost so many cases in the lead-up to the 2020 election.
Much commentary about these cases focused on the “Purcell Principle,” the doctrine that tells courts not to change election rules too close to an election for fear of creating chaos and confusion. As David Gans wrote, “[b]y privileging the status quo and preventing courts from issuing remedies close to Election Day, it downgrades the right to vote—long described as ‘preservative of all rights’—into a second-class right, which inevitably harms the marginalized and less powerful.”
But there is an additional, more concerning problem with these cases: they too readily deferred to state legislatures and election officials on how to administer elections, allowing infringements on the constitutional right to vote without sufficient justification. At times, the courts found minimal burdens on voters, while in a few instances courts lamented that voters will probably suffer a burden on their ability to vote but still upheld the states’ practices because of a perceived need to defer. Courts blindly said that election administration is the province of the state legislature or credited general assertions of the goal to ensure “election integrity,” without more. There was also a reinvigoration of the “independent state legislature” doctrine, which posits that state legislatures have plenary power to regulate federal elections without interference from state courts. Ultimately, the protection of the right to vote turned into an undue deference standard, one that places a thumb on the scale of states, especially as an election draws near. Thus, the problem is not only that courts applied the Purcell Principle and refused to invalidate state election rules too close to the election to preserve the status quo; they also too readily deferred to states and thereby devalued the constitutional right to vote.
That deference carried over into the post-election litigation in 2020, although it was much more justifiable in that setting. The Trump campaign and Republican supporters filed suits in at least Arizona, Georgia, Michigan, Nevada, and Pennsylvania, as well as directly to the U.S. Supreme Court, and all of those suits failed. One might say that the courts “deferred” to the states’ election apparatus in that judges refused to invalidate the results of a just-completed election. At times, the courts in the postelection litigation relied on a doctrine of laches (that plaintiffs brought the lawsuits too late) or lack of standing. But courts also rejected the claims on the merits, noting that undoing an election after the fact would disenfranchise millions of voters or that the specific allegations were not enough to change the result. Either way, the post-election cases say less about the future of election law doctrine—except that courts are extremely reluctant to entertain claims to overturn an election—than do the pre-election cases on the administration of an upcoming election. Those preelection cases exhibit an undue deference standard that refuses to question state processes even in the face of strong evidence of likely disenfranchisement.
This Article shows why the federal courts’ jurisprudence toward the right to vote in these recent cases is so concerning. Part I recounts the 2020 pre–Election Day litigation to demonstrate how the U.S. Supreme Court and the federal appeals courts too readily deferred to states and election officials without requiring states to identify the “precise interests” that their laws promote or why it was “necessary” to burden voters’ rights. It also explains how several Supreme Court justices and at least one circuit court breathed new life into the independent state legislature doctrine. Part II illustrates why this jurisprudence is wrong under Anderson-Burdick and explains how it devalues the right to vote, the most fundamental right in our democracy. Deference to state legislatures is particularly inappropriate in election cases given legislators’ inherent incentive to craft election rules to help keep themselves in power. Part III suggests that if the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote in the U.S. Constitution and requires states to justify, with specificity, any infringements on that right
Turtles All the Way Down: A Clearer Understanding of the Scope of Waters of the United States Based on the U.S. Supreme Court Decisions
Get PDFThe meaning of “waters of the United States” under the Clean Water Act (“CWA”) has been debated in Congress, federal agencies, and courtrooms across the country for almost fifty years. Despite the longstanding attention to the term, most consider the term even more unclear today than in 1972 when the CWA was adopted. However, a methodical examination of the statutory and regulatory history and the U.S. Supreme Court decisions on the issue reveal more consensus than previously understood. In addition, this focused examination shows that the debate centers on one problem that the arguments rarely acknowledge: wetlands adjacent to a “tributary.” Specifically, litigants and agencies attempt to show that the wetland at issue lies close to some type of water, whether a ditch, drain, or creek. If that water eventually reaches a navigable water, no matter how indirect or attenuated the path, the wetland is arguably jurisdictional. This Article distills the issues and clarifies the agreements and controversies surrounding “waters of the United States.”
The meaning of the phrase “waters of the United States” has been debated in the legislature, federal agencies, and courtrooms across the country since Congress adopted the CWA in 1972. The debate intensified beginning in 1985 and now forms the focus of much rule-making and litigation. Section 404 of the CWA prohibits the discharge of dredged or fill material into the “navigable waters.” Navigable waters mean the “waters of the United States, including the territorial seas.” The term waters of the United States, as used in the CWA, was not further defined by Congress.
This Article first provides a brief overview of the history and background of the CWA and the regulations thereunder. The history reflects a shift in focus from commerce to environmental protection. U.S. Supreme Court case law interpreting the meaning of waters of the United States (“WOTUS”) is then examined. The Article then reviews the 2015 WOTUS Rule (“Obama Rule”) and the 2020 Navigable Waters Protection Rule (“Trump Rule”). The Article also explores the applications of deference to the agency in various cases and how judicial deference may evolve in the future. Given the attention of case law on the definition of tributaries and adjacency of wetlands to tributaries, those issues form the Article’s focus
To Damn or Not Damn a Dam: Stakeholder Collaboration as a Tool for Dam Management
Get PDFDams have played an integral role in the development and economic growth of the United States for centuries, and remain important fixtures in water and energy management. However, after standing for decades, aging dams across the country are deteriorating or creating harmful environmental impacts that have made them sources of contention in many river basins. Calls to remove certain dams have been growing and in recent years have particularly intensified with respect to some large federally owned or regulated hydroelectric dams. These larger dams are subject to ongoing environmental review under the National Environmental Policy Act. Nonfederally owned dams also are subject to review through the Federal Energy Regulatory Commission’s relicensing process, and federally owned dams are reviewed by the agencies that own and manage their operations, such as the U.S. Army Corps of Engineers or Bureau of Reclamation. As dams age, these environmental reviews are generating increasing discord and litigation among dam operators, landowners, local communities, Native American Tribes, and environmental activists. Fortunately, as experience in other areas of natural resource management has shown, collaborative governance regimes that replace or supplement traditional agency decision-making can often reduce conflicts in large multistakeholder settings. Among other things, well-structured stakeholder collaboration schemes tend to incorporate more diverse perspectives and increase public acceptance of agency actions. Recognizing these potential advantages, this Article argues that federal agencies should reshape dam relicensing and reevaluation policies to incorporate more collaborative elements and outlines specific strategies for pursuing that goal
Very Complex Questions : Zoos, Animals, and the Law
Get PDFIn Sulawesi, Indonesia—forty-five thousand years ago, an artist painted what is now the world’s oldest known cave painting—a life-size image of a wild pig. Forty thousand years later, the elite of Hierakonpolis, Egypt, housed elephants, hippos, and baboons in the world’s oldest known zoo. Today, individuals keep exotic fish, reptiles, and birds as pets while zoos and aquariums display some of the largest and rarest animals on the planet. The human fascination with wild animals is clearly not a new phenomenon, but how and why we keep wild animals have evolved over time. Zoos in particular have changed dramatically just over the past few decades. Once filled with bare, concrete cages and focusing exclusively on human entertainment, the American zoological industry now prides itself on prioritizing animal welfare. Many zoos now house animals in naturalistic habitats and work hard to educate the public about conservation and wildlife issues in addition to contributing directly to global efforts to preserve endangered species and their environments.
Although zoos and aquariums remain popular destinations, public backlash in response to the perceived welfare issues associated with keeping larger and more intelligent species in human care has escalated in recent years. In addition to boycotts, social media campaigns, and sensationalized documentaries, zoo and aquarium facilities also face a variety of legal challenges. This includes both legislation and litigation; animal rights groups regularly bring zoos and aquariums to court, often seeking to, inter alia, expand the legal scope of animal rights or prove animal mistreatment in a particular facility.
Several federal statutes confer a variety of protections on animals both in and out of zoos. However, the structure and nature of these statutory schemes make lawsuits concerning alleged animal mistreatment challenging for courts as well as attorneys. In addition, animal facilities— such as zoos, aquariums, and sanctuaries—do not regulate or even define themselves or each other consistently. Misleading or inaccurate—but popular—ideas about the best so-called solutions for animals in zoos only add to the confusion. This Note uses both court cases and the example of the real-life “Free Willy” to explore this unique intersection of the legal system and the zoological industry, looking in particular at what courts and zoos can do if a facility does not adequately care for its animals.
Plaintiffs in these animal mistreatment cases generally ask the court to order the transfer of the animals in question—often specifically to a sanctuary rather than a zoo; typically, plaintiffs also alternatively request that the court at least order the defendant facility to somehow remedy its treatment of the animals. On a few occasions, courts have granted such relief, requiring a facility to either surrender the animals or make specific animal husbandry changes. One particular request— for the transfer of one or more killer whales, or orcas to a “sea pen”—has not yet been granted. A sea pen is an offshore area—often a bay or partially enclosed area on a coastline—separated from the rest of the ocean by nets stretching from the sea floor to the ocean’s surface. Sea pens are often suggested as a potential “happy ending” for orcas in human care.
This Note examines the advantages and disadvantages of these three options—transferring animals to a different facility (the “transfer option”), ordering a defendant facility to change its treatment of the animals (the “treatment option”), or moving orcas or dolphins to a sea pen (the “sea pen option”). Part I provides background on the oversight, regulation, and definition of animal facilities. Part II explores the transfer and treatment options, while Part III evaluates the sea pen option. The conclusion considers wider lessons to be learned from these case studies
The Domains of Loyalty: Relationships Between Fiduciary Obligation and Intrinsic Motivation
Get PDFRecent scholarly inquiry into fiduciary law predominantly focuses on whether the subject is a coherent field and not a piecemeal assortment of doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. These include intrinsic motivation, markets for professional services, and forces like the operation of reputation. The Article demonstrates that looking across domains, from the legal to the extralegal, casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well as the mandatory nature of the distinctively fiduciary duty of loyalty that backstops parties who rely on the trustworthiness of others.
The Article also engages with implications to be drawn from extensive behavioral research on intrinsic and extrinsic motivation. The Article argues that fiduciary law can operate to reinforce loyal conduct motivated by nonlegal factors by “crowding in” loyalty, not crowding it out. Elaborating further, the Article uses concrete examples to examine how factors beyond the law that shape conduct likely vary in significance along dimensions of variation among fiduciary relationships