Health care reform is once again in the air. Virtually all Democrats favor some meaningful expansion of public insurance, whether through single payer or the creation of a “public option” that would allow consumers dissatisfied with the private market to buy into a public program. Republicans, not surprisingly, have pushed back, not only against single payer, but also against the public option, saying it will drive private payors to extinction. All the political jousting implicates a larger and serious policy question; namely, what should be the role of private payors in the nation’s health care system? Arguments to date on that subject have largely overlooked two crucial realities. First, payors (public and private) perform multiple functions regarding health care delivery. That the government is better at one function does not mean, or even imply, that the government is better at all of them. By disaggregating the services payors render in connection with health care financing, debates about the ideal roles for public and private payors — as well as whether one of them will or should compete the other into extinction — can be had on understandable terms. Second, although frequent references to the competitive virtues of a public option have been made, insufficient thought has been given to the conceptual specifics of why and how private payors faced with a public option might evolve. In terms of improving care delivery, observers have underexamined how private payors might serve as welfare-enhancing big data digesters, care evaluators, choice intermediaries, and incentive innovators — all proficiencies that not only rate to improve the cost and quality of care, but are entirely harmonious with modern experience about where private actors often create value: by collecting, analyzing, packaging, presenting, and deploying information. Once these two significant theoretical refinements are brought to bear, a richer analysis of the public-private question emerges — and one that supplies good reason to doubt that private payors should or will (at least in the short term) be put to the sword by either Congress or public-option-armed consumers.
The process of searching for relevant legal materials is fundamental to legal reasoning. However, despite its enormous practical and theoretical importance, law search has not been given significant attention by scholars. In this Article, we define the problem of law search and examine the consequences of new technologies capable of automating this core lawyerly task. We introduce a theory of law search in which legal relevance is a sociological phenomenon that leads to convergence over a shared set of legal materials and explore the normative stakes of law search. We examine ways in which law scholars can understand empirically the phenomenon of law search, argue that computational modeling is a valuable epistemic tool in this domain, and report the results from a multi-year, interdisciplinary effort to develop an advanced law search algorithm based on human-generated data. Finally, we explore how policymakers can manage the challenges posed by new machine learning-based search technologies.
INTRODUCTION ............................................................................... 548 I. LAND CONTRACTS AND THEIR HISTORY IN THE UNITED STATES ........................................................................ 556 A. The Nature and Governance of Land Contracts............... 557 B. The Predatory Nature of Land Contracts Versus Traditional Mortgages ...................................................... 560 1. Land Contracts and Their Differences from Mortgages ......................................................... 560 2. The Conditions of Homes Sold Via Land Contract and Unjust Markups .................................................. 562 3. Potential Benefits of Land Contracts ........................ 564 C. The Evolution of Land Contracts in the United States .... 565 D. The Racialized History of Land Contracts and Their Disparate Impact on Minorities .............................. 567 1. The Great Migration Era........................................... 568 2. Land Contracts Post-Great Recession ...................... 571 II. THE EVOLUTION OF THE DISPARATE IMPACT DOCTRINE ........ 573 A. The History of Disparate Impact Jurisprudence: From Griggs to Inclusive Communities ........................... 575 1. Early Disparate Impact: Griggs v. Duke Power Co.
After decades of calls for comprehensive consumer privacy laws in the United States, they are nearly here. The debates surrounding these laws, however, have paid scant attention to the inevitable First Amendment challenges. These challenges will occur in the context of the “deregulatory First Amendment,” the Supreme Court’s decades-long expansion of First Amendment limits on economic regulations. Scholars have compared this deregulatory agenda to the judicial excesses of the Lochner era. The First Amendment, however, has even greater deregulatory potential today because contemporary economic and social activity depend upon exchanges of information. Accordingly, First Amendment challenges to consumer privacy laws will bring us to a crossroads. One path forward would continue the Court’s deregulatory trajectory, drawing largely on the Court’s recent decisions in Sorrell v. IMS Health, Inc. and Reed v. Town of Gilbert. That path would further constrain the administrative state by treating all consumer data flows as “speech” for First Amendment purposes and using the Court’s recent approach to content discrimination to subject most consumer privacy laws to strict scrutiny, rather than the intermediate scrutiny that has applied to commercial speech for decades. An alternative path, however, would resolve challenges to consumer privacy laws under established First Amendment doctrine. That traditionalist path would treat consumer data as commodities rather than speech, analyze typical consumer privacy laws as imposing no more than incidental burdens on speech, and preserve the intermediate scrutiny standard for commercial speech regulations. The consequences of this choice will reach far beyond consumer privacy law and could jeopardize many of the regulatory tools on which the modern administrative state depends.
Employment discrimination statutes prohibit employers from discriminating against individuals on the basis of certain protected characteristics, such as race or sex. For intentional discrimination claims, plaintiffs often attempt to prove an employer’s discriminatory intent with comparator evidence attempting to show that the plaintiff was treated differently than a similarly situated individual outside the plaintiff’s protected class. Although plaintiffs often invoke comparator evidence to prove discriminatory intent, comparator evidence may also be helpful in disproving that alleged intent. This Article identifies the four primary ways employers use comparator evidence to defeat employment discrimination claims, and shows how courts have analyzed those defenses with a particular emphasis on recent decisions of the United States Courts of Appeal. From there, this Article presents a unique framework for defendants to employ in creating a defense to an employment discrimination claim involving comparator proof, one modeled from the theory of stasis from classical Greek and Roman rhetoric.
The systems approach is an application of systems analysis to law. Over the past twenty-five years it has proven highly successful in both teaching and legal scholarship. This Article explains the authors’ application of the systems approach in a new casebook, Business Associations: A Systems Approach (forthcoming, Wolters Kluwer 2020). The systems approach is designed to directly prepare students for the practice of law. It does so by providing students with the information lawyers use to solve clients’ problems and asking the students to solve the problems of hypothetical clients in realistic settings. The approach differs from traditional casebooks in four principal respects. First, it provides information as simply and directly as possible instead of asking students to ferret it out or infer it from cases. Second, it explains the law in the context of the physical systems in which law is employed, including law offices, board rooms, courtrooms, legal documentation, and online voting, entity-registration, and information systems. Third, based on our conclusion that the four main entity types (partnership, corporation, LLC, and limited partnership) all perform the same functions, we have organized the material by function — financing, investor voting, manager voting, investor litigation, investment transfers, etc.— instead of by entity type. Lastly, the systems approach is largely a “flipped classroom” approach. Students learn and apply the material to problems prior to class. Class discussions are an opportunity for students to check their reasoning, reach more sophisticated solutions, and critique the system in light of the issues they encountered.
Mainstream policy discussions take as given that the United States will and must pay its debts in full and on time, and that restructuring is legally and politically impossible. In our judgment, this assumption is unwarranted. Far from being unthinkable, under some circumstances restructuring the debt of the United States would merit serious consideration, and these circumstances may well be fast approaching. We diverge from the standard wisdom for two reasons. First, we doubt that payments on treasury obligations will necessarily take precedence over what the electorate sees as more pressing needs, including national security and price stability. In particular, we suspect voters may balk if told that holders of United States debt securities have ironclad priority over Social Security claimants and others with well-settled expectations of government benefits. Second, we think it wrong to equate restructuring with catastrophe. While we do not dismiss out of hand the dangers of not paying creditors in full and on time, we believe that—perhaps counterintuitively—the American constitutional framework could prove an asset rather than a liability when it comes to handling severe financial stress. Our conclusion on this point follows from the insight that the very dispersals of power that can fuel gridlock can also serve to enable the United States to offer credible assurances that its new financial structure will be stable going forward. .
Whenever a court enforces a bargain, it does so against someone who regrets having made it. Why should he be bound? Our thesis is that, in principle, a contract of exchange should be enforced when it is economically fair and voluntary. It is economically fair when the performance that each party is to make is equivalent in economic value to the one that he is to receive. It is voluntary when each party receives something that he deems to be of greater personal value to him than what he gives in return. If not, he should only be bound when it would be economically unfair to the other party to release him. Our theory is a modern version of Aristotle’s description of contract as voluntary commutative justice. We show how that idea can be made precise using the insights of modern economics. We show how it can explain the principal legal doctrines that govern when a contract of exchange is enforced: unconscionability, liquidated damages, consideration, impracticability, mistake and frustration of purpose.
The nonprofit world of the university has long segregated the approved public voices of the administrative class from the underground voices that carried a narrative about pathologies in the workings of power, an underground not suited to enter the realm of something public and serious. The no confidence vote has partially filled the gap in the management of approved internal voice, but certain traditions of secrecy have resisted exposure through unmanaged group challenge. Recent scandals at major universities have helped energize an examination of administrative practices designed to insulate the university from meanings revealed by persons subjected to the abuse of power. The #MeToo movement has recently burst forth into the university setting, powered by journalists and students bringing university secrets into public view. #MeToo reveals to the public accountability pathologies in nonprofit institutions that have been periodically, but only partially, addressed by votes of no confidence brought by faculty or other professionals. #MeToo has a primary goal that meshes with the purposes of the no confidence tradition of self-help, deployed by groups to expel bad leaders supported by an institutional hierarchy. Relief from an abusive or failed leader is the short-term goal in a vote of no confidence, but the uncovering and dissemination of social knowledge that has been successfully suppressed is an epistemological enterprise as well. The effect is to rescue private shared knowledge from dismissal by administrators and others possessing a voice deemed serious and public. The methods by which #MeToo and other disclosures about pathologies within the academic setting can be exposed are little analyzed or compared. This Article is a preliminary examination and evaluation of the techniques by which groups composed of faculty members, and to a lesser extent, students work to bring private knowledge into a public forum for immediate response and long-term reform. #MeToo presents an opportunity to compare methods for any group facing a problematic leader or other person the hierarchy will neither correct nor dismiss. The comparison addresses the comparative efficacy of expert group voice, student self-help, litigation, and investigative journalism in forcing leader exit as well as producing a long-term enhancement of social knowledge of the patterns of organizational dysfunction and abuse.
On the last day of the last term the Court split 5-4 in a controversial and contentious Janus decision with a dissent read from the bench. The dissent argued, in large part, that States should be free to permit public-sector unions to continue to assess employees who do not join the union agency fees, even if some of these employees object to associating with the unions’ political objectives and strategies, in order to overcome the free-rider problem where nonmembers enjoy the collective bargaining benefits achieved without paying for them. The majority held that overcoming the free-rider problem was insufficient grounds for perpetuating an intrusion into First Amendment rights. Both sides overlooked a far larger free-rider problem. Public-sector labor unions are a well-defined and cohesive coalition that is organized to divert more taxpayer resources to their coalition. Due to the free-rider problem, taxpayers have difficulty organizing a strong defense against this coalition. This Article discusses some economic principles, some differences between historical labor unions in the private sector and modern public-sector labor unions, and the Janus decision.
With the advent of DNA exonerations, the data would indicate that many individuals have been wrongly convicted. In looking at the causes of the exonerations, nearly 20% have involved testimony by accomplices and jailhouse informants. The questionable credibility of these individuals has long been recognized by courts and legislatures. Reforms in this area include, enhanced jury instructions, pre-trial credibility hearings, and corroboration before the testimony can be introduced. This article argues the efficacy of expert testimony to further assist jurors in measuring the credibility of these witnesses. Although the use of experts has largely been disfavored by courts, there has been a gradual movement to use experts for eyewitness identifications, the major cause of exonerations. The article proposes a similar movement for informant testimony.
An often-overlooked question is who should decide the important questions of the day. This Article takes up the inquiry as it relates to copyright fair use. Conceptually, fair use is a public policy question. The better policy view is that fair use is a statutory right, a speech-protective safeguard, and a defense — but not an affirmative defense. Operationally, who decides fair use is a judicial policy question. Who decides a particular question is informed by the nature of the question. Courts are arbiters of law, and juries are arbiters of facts. For a mixed question of law and fact, who decides is driven by whether the question is more fact-like or more law-like. Categorizing such questions is, at its core, an allocative policy question. The policy answer is driven by the nature of the question, relative institutional skills, and the importance of the interest at stake. Properly seen as an affirmative right, and not an affirmative defense, the interests at stake in fair use cases are a user’s right to free expression balanced against a copyright holder’s statutory privilege. This Article contributes to the scholarly conversations by laying bare the reality that who decides the question of copyright fair use is nakedly political. Courts are actively wrestling with this unresolved policy question. The Seventh Amendment fashions a policy preference for juries to decide questions of fact. Moreover, history confirms a long tradition of relying on juries to make fair use determinations. But it is unclear if this tradition will continue. Without Supreme Court guidance, categorizing fair use as more law-like or more fact-like is so slippery and malleable that the Seventh Amendment ceases to be an influence — much less a command.
This Article examines the U.S. Supreme Court’s 2018 First Amendment-based decisions in both National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The Article illustrates how the rulings in these right-not-to-speak cases deepen the divide on today’s Court over when a case affecting speech merits heightened First Amendment analysis (be it strict or intermediate scrutiny) and when it only deserves rational basis review as an economic or social regulation. The cases nudge to the breaking point a dangerous game of push-and-pull between the Court’s conservative and liberal justices over the scope of free expression that undermines any semblance of doctrinal coherence. The conservatives are turning more and more cases into First Amendment battles demanding something greater than rational basis review. This backs the liberals into a corner, forcing them to argue that heightened review only applies when “the true value of protecting freedom of speech” is at stake, such as facilitating democratic self-governance. In the process, the line between speech and conduct is blurred while outright animosity between the Court’s conservative and liberal camps percolates in opinions. * Professor & Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. The author thanks University of Florida students Hannah Beatty, Jessie Goodman, and Emerson Tyler for reviewing and critiquing drafts of this Article. 74 Michigan State Law Review 2019
In the 2017 case Pena-Rodriguez v. Colorado, the U.S. Supreme Court discussed several safeguards that are in place to assist the trial court in identifying racial bias among jurors. These safeguards include voir dire examination regarding racial bias, observation of juror demeanor and conduct that might demonstrate racial bias, reports of racially biased comments or actions by jurors during trial, and non-juror evidence of racial bias after trial. The Court acknowledged that these safeguards may be insufficient at times and therefore added a fifth one, holding that trial courts may review evidence suggesting that racial bias was a motivating factor in a juror’s decision to convict a criminal defendant even when the evidence of bias rears its head during otherwise non-impeachable jury deliberations. This Article demonstrates that the safeguards identified by the Court must be improved if they are to assist trial courts in ferreting out juror bias. Social science research has made clear that a majority of Americans carry some level of subconscious or implicit bias against racial minorities and that this bias manifests itself in the application of racial stereotypes. These stereotypes can influence many aspects of the jury’s functions. Until courts and legislatures are willing to craft safeguards that will address the impact of bias head-on, the jury system will continue to be infiltrated with bias. I believe that the first step in ridding the jury system of racial bias is to tell the truth about the prevalence and effect of bias. This includes naming the stereotypes that are at play whenever a person of color enters a courtroom. Through honest, open dialogue, we can begin to chip away at the justice system’s tradition of discrimination. I acknowledge that these truths may make us uncomfortable, but the truth and reconciliation process tells us that we can heal only after we have sat in the discomfort. Section I of this Article explores the prevalence and impact of racial bias among jurors. This Section reviews the social science research establishing that bias, whether conscious or unconscious, affects the way we perceive those who are different from us. This Section also names many widely known stereotypes about minorities and discusses how those stereotypes affect the jury’s core functions of character assessment, witness credibility assessment, and fact interpretation and recall. Section II briefly reviews the facts of Pena-Rodriguez and discusses the two preemptive safeguards that purportedly protect parties from racial discrimination in the courtroom. This Section demonstrates that those two safeguards, voir dire and jury instructions, are not universally available to criminal defendants and, when used, are not always effective. Finally, Section III details my proposals for improving voir dire and jury instructions in a way that places the truth at the forefront and moves our system toward an open discussion of racial bias in the courtroom.
Indigenous law provides accessible and expeditious dispute resolution in certain regions of Central and South America. Its focus is achieving solutions to a wide variety of problems through consultation and consensus in a manner that restores the harmony of the community. Sanctions, where applicable, seek to reintegrate and reorient the recipient to living a life that is consistent with the community’s values. The formal justice systems of the Northern Triangle countries— Guatemala, El Salvador, and Honduras—face major challenges in providing their people with access to justice. However, unlike countries with significant indigenous populations in South America, they have not recognized that indigenous law and its accompanying social structure has the potential to address serious problems that the formal justice system cannot or does not reach. Indigenous law is a type of restorative justice and research indicates that where it is robust there is markedly less crime. Though its philosophy and approach differ from formal justice systems, participants find it fair and often prefer it even if they have access to the formal system. Recognition and support of indigenous justice would be a positive and humane response to some of the problems that prompt large numbers of Central Americans to live in despair or seek to leave their countries of origin. * Professor of Law, University of the Pacific, McGeorge School of Law. Director, Inter-American Program in Guatemala (2013-2015, 2017). With gratitude to the law school for financial support and patience while this work evolved. I owe particular thanks to Professor Raquel Aldana, whose knowledge of Latin America and Guatemala was indispensable, and to colleagues Linda Carter, Stephen Cody, Brian Landsberg, and Larry Levine for their insights on prior drafts. I benefitted greatly from time spent in Guatemala, including visits with the indigenous authorities in Sololá and Chuatroj, as well as from conversations my Guatemalan colleagues, Lorenzo Chávez and Luis Mogollón. Thanks also to my bilingual research assistants: Andrea Athens, Isabel Glaese Blackburne, and Eduardo Medina. Unless I have credited someone else with translation from Spanish to English, I have provided it. 674 Michigan State Law Review 2018
