Lauren Willis, When Nudges Fail: Slippery Defaults, 80 U. Chi. L. Rev. ___ (forthcoming 2013) available at SSRN.

Paul Ohm

If Jotwell is meant to surface obscure gems of legal scholarship, which might go unnoticed otherwise, I might be missing the point by highlighting a work forthcoming in the not-so-obscure University of Chicago Law Review on the au courant topics of nudges and liberal paternalism. But Lauren Willis’s new article, When Nudges Fail: Slippery Defaults, might escape the attention and acclaim it deserves as a work of information privacy law, so it is in that field I hope to give the article its due.

Willis’s article takes on the pervasive idea that all default choices are sticky. Defaults can sometimes be sticky, but Willis carefully deconstructs the economic, social, and technological preconditions that tend toward stickiness, and then demonstrates how firms can manipulate those conditions to render defaults quite slippery. Continue reading "The Care and Feeding of Sticky Defaults in Information Privacy Law"

Margaret Hu, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN.

Mary Fan

The memory seems almost quaint.  While waiting with prosecutors in the hallway between indictments, an excellent customs and border protection agent would entertain and impress with his uncanny ability to pick out fake passports from real ones.  Part of this skill came from a keen mind capable of decoding the patterns of passport numbers and comparing them against the algorithm used in official passports.  Part of this talent came from the wisdom and judgment honed by experience.

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software. Continue reading "The Brave New World of Identification"

Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, U.C. Davis L. Rev. (forthcoming, 2013) available at SSRN.

Brooke D. Coleman

The Federal Rules of Civil Procedure are 75 years old this year. Imagine a fete thrown in their honor-mini rule books as party favors, balloons emblazoned with Rule numbers 1-86, and a cake decorated with the words “Just, Speedy, and Inexpensive.”  If there ever where such a party, Lonny Hoffman’s article, Rulemaking in the Age of Twombly and Iqbal, should be the opening toast.  No, his article does not begin with a pithy joke; although, that might be fun. What it does is address the federal civil rulemaking process, an important — but often less discussed — aspect of the civil rules.

Hoffman’s article uses Rule 8’s pleading standard and the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal as an entry point for his discussion of the federal civil rulemaking process.  First, he provides a thorough historical account of Rule 8.  He relies on primary source material and weaves a rich recounting of the original rulemakers’ Rule 8 deliberations.  The original civil rulemaking committee made a choice in Rule 8 by using the word “claim” in the text as opposed to “fact.”  It chose this language for maximum flexibility and minimum technical wrangling.  This much we already knew. But Hoffman’s account reminds us of Rule 8’s origin before summarizing how the civil rulemaking committee treated Rule 8 over time.  What his account tells us is that the rulemakers had multiple occasions to reconsider the policy choices made in the original Rule 8.  He documents how rulemakers confirmed Rule 8 again and again from the 1970s until just before Twombly was decided in 2007.  While the reasoning of each committee varied a bit — some citing the practical difficulty of amending the rule, some questioning the empirical basis for changing the rule, and some arguing that heightened pleading would be antithetical to the rule’s purpose — it is safe to say that, overall, the rulemakers actively decided to keep Rule 8 as it was. Continue reading "Celebrating Federal Civil Rulemaking"

Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 Yale L.J. 1278 (2011).

Pat Gudridge

Whatever Reva Siegel writes is worth close study.  This recent Yale Law Journal article is no exception — characteristically alert and probing, quintessentially first-rate.  She identifies a worry recurring in important opinions Justice Kennedy has written recently – an intimation that identifying individuals on the basis of race is balkanizing.  This suggestion or something like it, she notes, also shows up in affirmative action opinions Justices O’Connor and Powell wrote and in an impressive article by Paul Mishkin Professor Siegel herself, Robert Post, and others have taken up.  She wonders whether the balkanizing worry defines a third way — an alternative to both color-blind concerns with use of racial classifications as such and preoccupations with the facts and circumstances of subordination.  The well-known Seattle and New Haven controversies look like appropriate cases for use of the balkanizing idea, she thinks.  Her discussion of Seattle (and the Louisville companion, not really separated) is somewhat abstract. Her assessment of how the city made matters worse in New Haven, and the likely consequences, feels especially dead-on.

As the article itself suggests in its long finish, the notion of “balkanizing” is provocative but incomplete.  There needs to be some filling in.  Reva Siegel is sure about that, but she doesn’t try to take the work too far.  She’s sketching but not necessarily joining this school of thought.  But what she writes is nonetheless a very effective prompt, an invitation to readers to pose tests or propose for themselves more in the way of elaboration.  Indeed, a true sign of the great success of the article lies in how quickly the reader begins to join in Siegel’s exploration. Continue reading "Balkan Ghosts"

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David J. Barron and Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265 (2013).

Peter Shane

In July, 2012, the Obama administration invited states, which administer the Temporary Assistance for Needy Families (TANF) program, to apply for waivers from some federal requirements for that program.  The states would have to have alternative programs in place for increasing employment among the poor.  In short order, the presidential campaign of Republican candidate Mitt Romney charged the President with gutting federal law.  Campaign commercials alleged that Obama was illegally ending the work requirements that had been a centerpiece of federal welfare reform in the 1990s.

Although the commercials had little political impact, they did bring to public attention a little-noticed feature of a surprising number of federal statutes – a feature that Professors David Barron and Todd D. Rakoff call “big waiver.”  In their superb paper, “In Defense of Big Waiver,” they analyze a fascinating phenomenon.  Congress sometimes will enact “a fully reticulated, legislatively defined regulatory framework” that contains within it a delegation of “broad, discretionary power to determine whether the rule or rules that Congress has established should be dispensed with.” Continue reading "“Big Waiver” as a Constructive New Tool of the Administrative State"

• Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695 (2012).
•  Brishen Rogers, Passion and Reason in Labor Law, 47 Harv. Civ. Rts.-Civ. Lib. L. Rev. 313 (2012).

Matt Bodie

The existential dilemma of modern labor law has been the shrinking numbers of employees who vote for union representation.  Last year unions represented only 11.3 percent of U.S. employees—just 6.6 percent in the private sector.  Labor law scholars have long attempted to account for the trend; indeed, rumors about the death of labor law have been around for at least twenty years.  One might think that the academic ground concerning the decision to join or not join a union would be well-plowed—so plowed over, in fact, that the land would no longer be fertile.  But two recent articles not only belie this claim, they also show the continuing importance of the representation decision to our conceptions of workplace justice.

In A Moral/Contractual Approach to Labor Law Reform, Eigen and Sherwyn seek to find middle ground between the union-side story and the management-side story as to those declining percentages.  They reject the notion that a fairer labor law system would be one in which unions enjoyed higher success rates.  Instead, they argue that representation elections should be fair, and they define a fair system as one that “will result in employees believing they had enough information to make an informed decision, that they were respected, and that they were not intimidated, threatened, or coerced.”  (p. 712) Although they acknowledge the well-regarded labor law critique by Paul Weiler and others that workers are insufficiently protected against coercive employer tactics during the representation campaign, they also contend that unions have “failed to adapt with the times.”  (p. 719)  According to Eigen and Sherwyn, under the current system workers are trapped in tug of war in which both unions and employers can lie, manipulate, and coerce their way to victory.  Card check neutrality agreements, in their view, make matters even worse: since the union must collude with the employer to put such an agreement into effect, they argue that such agreements constitute improper employer support to the union in violation of NLRA § 8(a)(2).¹  Instead of shortening or eliminating the representation campaign, Eigen and Sherwyn argue that labor organizations and employers should agree to the “Principles for Ethical Conduct During Union Representation Campaigns” as set forth by the Institute for Employee Choice.  The Principles require truthfulness; prohibit discharges, threats, and bribes; and call for equal time and access for both sides.  Eigen and Sherwyn acknowledge some question about how the Principles should be enforced; they reject codifying them as regulatory requirements, but are equivocal between providing legal incentives for compliance and just simply leaving them as a contractual option.  Here, Eigen and Sherwyn rely on past research (including this paper by Eigen) to argue that making the Principles mandatory will undercut the moral norms that might render them more effective in the workplace than legal sanctions.  Ultimately, they hope that joint agreement to the Principles will make all parties, but particularly employees, better off as a result. Continue reading "Choose or Lose"

Joanna Shepherd, Justice in Crisis: Victim Access to the American Medical Liability System, Emory Legal Studies Research Paper 12-222 (2012) available at SSRN.

Nora Engstrom

When we think about access to justice, we don’t tend to think about personal injury victims.  Indeed, I recently completed a review of legal needs surveys from seventeen states, conducted between 2007 and 2012.  Attempting to measure the citizenry’s “level of access to the civil justice system,” the surveys generally asked about all manner of legal issues:  consumer problems, housing problems, health problems, employment problems, family problems, and problems obtaining public benefits.  Yet out of these seventeen studies, only four inquired about accidents.

Why this omission?  It’s not that accidental injuries are too rare to merit inclusion.  To the contrary, Deborah Hensler’s classic work, Compensation for Accidental Injuries in the United States, shows that accidents happen with unnerving frequency.  Roughly one in six Americans sustains an accidental injury that results in measureable economic loss each year, and some accidents are serious.  One-third of accident victims’ injuries impose “significant costs on them and on society.”  Likewise, Barbara Curran’s groundbreaking 1977 study, The Legal Needs of the Public, found that “tort problems” (including those involving property damage) were more common than problems involving marital issues, job discrimination, wage collection, landlord-tenant disputes, and other consumer problems, combined. Continue reading "Bridging the Gap in the Justice Gap Literature"

Kristin Hickman, Unpacking the Force of Law, 66 Vand. L. Rev. 465 (2013).

Donald Tobin

With the Supreme Court’s recent decision in Mayo Foundation for Education and Research v. United States, there is a huge void of scholarship regarding how administrative law principles apply in the tax context.  Kristin Hickman helps fill that void by continuing her work at the intersection of administrative law and tax procedure in her recent Vanderbilt Law Review article “Unpacking the Force of Law,” which deals with the treatment of temporary treasury regulations and IRB guidance after the Supreme Court’s decisions in Mayo and United States v. Mead Corp.

In Mead and Mayo, the Court clarified that agency regulations received Chevron deference if they were based on either specific grants of rulemaking authority contained in a statute or on general rulemaking authority granted by Congress to a specific agency.  Mead explained that an agency’s regulation was entitled to Chevron deference as long as “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”  In addition, in Mayo, the Supreme Court rejected the idea of tax exceptionalism stating “[w]e are not inclined to carve out an approach to administrative review good for tax law only.” Continue reading "Temporary Treasury Regulations and IRB Guidance in a Post-Mead and Mayo World"

• Margaret H. Lemos, Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012).
• Deborah R. Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).

Jay Tidmarsh

Maggie Lemos’s valuable article tackles one of the hot issues in aggregate litigation: a government (typically acting through its attorney general) using parens patriae suits to vindicate the rights of its citizens.  As I described in my last Jotwell post, access to justice in a mass society is the central civil-justice issue of our day.  Individual litigation of mass-injury claims is a luxury that neither litigants nor the court system can typically afford.  Class actions are shriveling as a realistic alternative in many instances.  Non-class aggregate litigation is infected with its own problems, as the ALI’s recent Principles of the Law of Aggregation shows.  And contracts of adhesion increasingly shunt victims into individual arbitration processes that provide little realistic opportunity for relief — and no opportunity for judicial resolution.

Into this harsh landscape enters the parens patriae action, which has emerged as the newest academic darling with the potential to provide victims of mass injury a measure of justice.  In these actions, the attorney general sues on behalf of those citizens allegedly injured by the defendants’ conduct.  Such a suit ensures a measure of deterrence.  If the recovery occurs and the attorney general establishes a fund against which injured citizens can claim, the suit also results in a modicum of compensation.  Because the suits are controlled by a public official, they also (in theory) come closer to achieving the optimal level of regulatory response, while avoiding the large fees, blackmail settlements, and other agency costs that so often give class-action and other aggregate litigation a bad name. Continue reading "Adequacy and the Attorney General"

Angus Burgin, The Great Persuasion: Reinventing Free Markets since the Great Depression (Harvard University Press, 2012)

Christopher Schmidt

In The Great Persuasion: Reinventing Free Markets since the Great Depression, Angus Burgin, a historian at Johns Hopkins, offers the fascinating story of a trans-Atlantic group of intellectuals who, beginning in the 1930s, came together in an effort to articulate and promote an alternative vision to the then-dominant ideas of Keynesian economics.  In this short essay, I describe Burgin’s impressive contribution to the intellectual history of modern conservatism, and then offer some concluding thoughts on neoliberalism as a constitutional value today.

The basic story of the resurgence of conservatism, including free market ideology, in the second half of the twentieth century is well known.  What this fine book adds is a sensitive and nuanced portrait of those thinkers—economists, mostly, but not exclusively—who, through several generations of struggle, among themselves and with their antagonists, shaped the ideas of what has come to be known as neoliberalism.  Burgin’s overriding argument is that these people made possible the eventual triumphs of free market ideas in the public sphere.  Although often articulated in abstract and technical terms, these were ideas that would have a profound impact on American life and politics. Continue reading "The Global Community of Ideas that Created Neoliberalism"