Georgetown Law Faculty Blog

New Working Paper by Gregory Klass

Regulating Information in Contractual Relationships, a new article by Gregory Klass, has just been posted to SSRN and BePress.

Abstract:

While much has been written about how individual rules of contract law impact parties' sharing of information, we do not yet have a general theory of the legal regulation of information in contractual relationships. In his recent article, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 Va. L. Rev. 565 (2006), Richard Craswell starts in on the project of providing one. This essay critically examines Craswell's arguments and discusses what such a general theory should look like. One of my central theses is that such a theory should keep apart two regulatory approaches: the use of scientific methods to study the informational effects of individual transaction elements, and interpretive approaches, which take as their object the meaning and veracity of such elements. The essay also discusses legal liability for implicit misrepresentations and the role of everyday interpretive norms in the law of misrepresentation in general.

The essay first summarizes what I take to be Craswell's central claims about information sharing, summarized by his rejection of the quantized view of information. I then discuss the similarities and differences between the two contract doctrines that are most obviously designed to regulate information sharing: nondisclosure and misrepresentation. This lays the groundwork for a detailed analysis of Craswell's claims about the law of misrepresentation. Craswell uses Grice's theory of conversational implicature to explain of how separate pieces of information can be bundled together in a single speech act. I argue that Craswell wrongly assumes (contrary to Grice's theory) that it is difficult to divorce implicit misrepresentations from the potentially beneficial speech acts that contain them. This error leads Craswell to overstate the similarities between misrepresentation and nondisclosure. The last part of the essay distinguishes two regulatory approaches, which I label causal-predictive and interpretive. Causal-predictive regulation, which Craswell advocates broader use of, employs the methods of behavioral economics to mandate how transactions should be structured. The law of misrepresentation, I argue, uses a fundamentally different method, one that focuses not on causation but on meaning and veracity. I make some general observations about the proper scope of these different regulatory approaches, their relative merits, and the prospects for combining them in the ways Craswell recommends.

New book: Asylum Denied: A Refugee's Struggle for Safety in America

The University of California Press has just published Asylum Denied: A Refugee’s Struggle for Safety in America, by David Ngaruri Kenney, a former client of the Center for Applied Legal Studies (Georgetown’s political asylum clinic) and his lawyer, Georgetown University Law Professor Philip G. Schrag, the clinic’s director.

The book explores U.S.immigration law and its administration (particularly but not exclusively) asylum adjudication, through Kenney’s first-person narration of his Kafkaesque encounters with the entire panoply of American immigration bureaucracies and courts. Kenney was a poor farmer in Kenya who led a boycott to protest certain agricultural policies of the country’s strongman President, Daniel arap Moi. For this act of defiance, Kenney was nearly executed, tortured, and imprisoned. After an amazing escape to the United States, he applied for asylum, but his application was rejected at every level, and he was finally forced to return to Africa, where he was once again nearly murdered.

 Some comments from prominent readers:

 "Asylum Denied is riveting and essential reading for anyone interested in the lives and struggles of immigrants. Kenney's story will astonish, frustrate, and inspire you."–Dave Eggers, author of What is the What

"This is a fabulous book-a love story, a law story, a struggle against death, a battle for justice, and much more. I urge you to read it."–Bruce Ackerman, Yale University

"Asylum Denied is at once a page-turner, a penetrating critique of the U.S. asylum system, and an exquisite exploration of humanity and politics, of emotion and law, of tension and release. It has the same narrative power that distinguished Jonathan Harr's A Civil Action."–Hiroshi Motomura, University of North Carolina

"In Asylum Denied, David Kenney and Philip Schrag bring us a deeper understanding of the vagaries of our asylum process by telling David's riveting story. What society wouldn't be enriched by such stoic, courageous and principled strivers as Kenney? The more we learn of the lives and yearnings of such people, the closer we will be to an asylum process worthy of our values."–Senator Patrick Leahy, Chairman, Senate Judiciary Committee

Publisher’s Weekly (March 24, 2008): Astonishing in its power to move and inform, this fluent first-person narrative, a collaboration between a young Kenyan political refugee, Kenney, and his stalwart American attorney, Schrag, depicts the flaws and corruption at the heart of the U.S. asylum process. Kenney fled Kenya in 1995 after being arrested and nearly executed for leading a peaceful protest against the government's treatment of his fellow tea farmers; he survived torture and escaped to
America where he was plunged into an incomprehensible and hostile immigration system. Kenney and Schrag's dealings with the Department of Homeland Security and federal immigration courts reveal a system that is "disquietingly random." Applicants are victims of "refugee roulette," their fates largely dependent on the sympathies of the government officials who hear their cases. Schrag's recommendations to make the system more consistent and compassionate give the book-and Kenney's heartbreaking story-an added sense of purpose and real practical potential. Kenya's recent political implosion lends this book added topical relevance, but its core concerns for justice and reform remain directed at American society, especially (though not only) its byzantine asylum system.

The book is available in book stores and on Amazon.com.

Steve Cohen at the Huffington Post

Steve Cohen has two recent pieces there, Judging Hillary's Judgment and Deja Vu: 2008 as 1968.

New Article by Carlos Vázquez

Treaties as Law of the Land: The Supremacy Clause and Presumption of Self-Execution, a new article by Carlos Vázquez and to be published in the Harvard Law Review, has just been posted to SSRN.

Abstract:

 

[This article was being prepared for publication in the May 2008 issue of the Harvard Law Review when the Supreme Court handed down its decision in Medellín v. Texas on March 25. A revised version will appear in a later issue of the same journal.]

The case law concerning the judicial enforcement of treaties has long been regarded as a morass. Relying on the notion that treaties are contracts between nations generally enforceable only at the state-to-state level, primarily through diplomatic mechanisms, the lower courts have begun to require private parties invoking treaties to make a threshold showing of "judicial enforceability" over and above the showing that litigants must make to enforce statutes and the Constitution. This Article argues that such a showing is unnecessary because the Supremacy Clause supplements the state-to-state enforcement mechanisms provided by international law with a domestic mechanism: enforcement in the courts at the behest of individuals. Under the Supremacy Clause, the judicial enforcement of treaties is governed by the same doctrines that govern the judicial enforcement of the other two forms of federal law - federal statutes and the Constitution. The sole exception to the foregoing proposition concerns treaties that are "non-self-executing" in the sense contemplated by the Court in Foster v. Nielson.  This Article argues that the Constitution establishes a presumption that treaties are self-executing in this sense. The Court's subsequent decision in United States v. Percheman is best read to have recognized such a presumption when it wrote that a treaty is non-self-executing if it "stipulat[es] for a future legislative act."

In recent years, the U.S. treaty-makers have been attaching declarations of non-self-execution to the human rights treaties the United States has ratified. These declarations appear to be stipulations of the sort contemplated by the Court in Percheman, but their validity has been the subject of considerable controversy. This Article concludes that declarations clearly stipulating that the treaty obligations being assumed by the United States are subject to legislative implementation do validly render the treaties non-self-executing in the Foster/Percheman sense.

New Article by Rebecca Tushnet

It Depends on What the Meaning of "False" is: Falsity and Misleadingness in Commercial Speech Doctrine, a new article by Rebecca Tushnet to be published in an upcoming issue of the Loyola of Los Angeles Law Review, has just been posted to SSRN.

Abstract:

While scholarship regarding the Supreme Court's noncommercial speech doctrine has often focused on the level of protection for truthful, nonmisleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First Amendment protection would be at odds. Rebutting the idea that constitutionally protected commercial speech could effectively address consumer abuses through fraud statues and would not be offensive to the First Amendment, the piece explains that subjecting commercial speech to First Amendment scrutiny would almost completely contract the scope of false advertising law and erode consumer protection. The piece concludes that while excluding commercial speech from constitutional protection has real costs, we are better off in a system that regulates false and misleading commercial speech without heightened First Amendment scrutiny.

3 Articles in the Latest Issue of the Stanford Law Review

The February 2008 issue of the Stanford Law Review contains the following articles by Georgetown Law Professors Sasha Volokh, Randy Barnett and Neal Katyal (writing with Richard Caplan):

• Randy E. Barnett, Kurt Lash's Majoritarian Difficulty: A Response to A Textual-Historical Theory of the Ninth Amendment, 60 Stan. L. Rev. 937 (2008).
  
  Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay I explain why his majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments in the Bill of Rights, and to the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a four-to-one majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendment by the one source he cites who actually uses the word "collective": St. George Tucker. In sum, the collectivist interpretation of the phrase "others retained by the people" is anachronistic--a projection of contemporary majoritarianism onto a text that is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.

• Neal Katyal & Richard Caplan, The Suprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, 60 Stan. L. Rev. 1023 (2008).
  
  This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime - President Franklin Delano Roosevelt's wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. As explored through primary source material, President Roosevelt acted against the interpretations of, among others, his Attorney General and the Supreme Court regarding a law passed by Congress, deciding, in secret, that wiretapping was essentially his prerogative. That Attorney General, Robert Jackson, later remarked that it was "[t]he only case that I recall in which [FDR] declined to abide by a decision of the Supreme Court."
  
  The FDR precedent provides some justification for what is known about President Bush's wiretapping program - more, it would seem, than what has been put forward by the Administration itself. By outlining some of the general conditions under which Executive Branch precedent may justify contemporary national security decisions, we develop a framework for Executive Branch stare decisis and ultimately conclude that the FDR precedent should not be followed today. We recognize, however, that our conclusion is debatable, and believe that the FDR precedent deserves widespread debate, instead of the inattention it has received thus far. We further explain why the past history and present experience with wiretapping reveals the relative frailty of both courts and Congress in national security disputes, and highlights the need to lace the concept of separation of powers into the Executive Branch.

• Alexander Volokh, Privatization and the Law and Economics of Political Advocacy, 60 Stan. L. Rev. 1197 (2008).
  
  A common argument against privatization is that private providers will self-interestedly lobby to increase the size of their market. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating for incarceration.
  
  I conclude that there is at present no particular reason to credit this argument. Even without privatization, government agents already lobby for changes in substantive law - in the prison context, for example, public corrections officer unions are active advocates of pro-incarceration policy. Against this background, adding the extra voice of the private sector will not necessarily increase either the amount of industry-increasing advocacy or its effectiveness. In fact, privatization may well reduce the industry's political power: Because advocacy is a public good for the industry, as the number of independent actors increases, the largest actor's advocacy decreases (since it no longer captures the full benefit of its advocacy) and the smaller actors free-ride off the largest actor's contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.
  
  The argument that privatization distorts policy by encouraging lobbying is thus unconvincing without a fuller explanation of the mechanics of advocacy.

Professor Luban's Newest Book: Legal Ethics and Human Dignity

Legal Ethics and Human Dignity, Professor David Luban's newest book, has recently been published by the Cambridge University Press.

From the Cambridge University Press description:

"In this collection of his most significant papers from the past twenty-five years, he ranges over such topics as the moral psychology of organisational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view. His discussion combines philosophical argument, legal analysis and many cases drawn from actual law practice, and he defends a theory of legal ethics that focuses on lawyers' role in enhancing human dignity and human rights. In addition to an analytical introduction, the volume includes two major previously unpublished papers, including a detailed critique of the US government lawyers who produced the notorious 'torture memos'. It will be of interest to a wide range of readers in both philosophy and law."

EPA Comes Clean on Climate

Lisa Heinzerling

Today EPA Administrator Stephen Johnson finally explained his decision, announced last December, to deny California's request for permission to implement its standards regulating greenhouse gas emissions from cars.  In a 48-page document, Johnson stated that EPA could not receive a "waiver" for its program under the Clean Air Act because the state does not have the kind of "compelling and extraordinary conditions" that make such a waiver appropriate.

But here is the kicker: Johnson concluded that California's problems aren't "compelling and extraordinary" because they're no worse than the very bad problems the rest of the country faces as a result of climate change.  Thus, in the course of denying California's waiver, EPA managed to make explicit, for the first time, its view that greenhouse gases endanger public health and welfare.  Johnson's discussion of greenhouse gases and climate change now obligates him to regulate these pollutants under the Clean Air Act.

The Clean Air Act directs EPA to regulate numerous sources of air pollution -- cars, power plants, factories, planes, and more -- once the EPA Administrator makes a finding that an air pollutant "may reasonably be anticipated to endanger public health or welfare."  In Massachusetts v. EPA, the Supreme Court explicitly held that regulation under the Clean Air Act must follow once the EPA Administrator makes such an "endangerment finding."

In 1999, several groups, led by the International Center for Technology Assessment, asked EPA to regulate greenhouse gases from automobiles.  They asserted that the science of climate change, even at that time, dictated a finding of endangerment.  In 2003, EPA rejected the petition, stating that it had no authority under the Clean Air Act to regulate greenhouse gases and that even if it had such authority it would decline to exercise it due, among other things, to the scientific uncertainty surrounding the issue.  In April of last year, in Massachusetts v. EPA, the Supreme Court reversed EPA's decision.  After holding that EPA did indeed have the power to reuglate greenhouse gases and that its reasons for declining to do so were unlawful, the Court directed the agency to take another look at the issues and to explain its ultimate decision in terms of the statutory criteria and the available science.  We've been waiting almost a year for an answer from EPA.

It came today, albeit in an unlikely context.  Superficially, today's decision looks like a huge loss not only for California but for all of the other states that have adopted California's emissions standards; together these states represent almost half of the U.S. population.  The rejection of California's waiver denies all of these states -- and their citizens -- the right to enact a climate change program for automobiles, a leading source of greenhouse gases.

But that is not all EPA's decision does.  The decision also contains a long discussion of the effect of greenhouse gases on climate and the effect of climate change on public health and welfare.  The EPA Administration states that "warming of the climate system is unequivocal."  He connects this warming to manmade greenhouse gases and describes the consequences of global warming for human health and welfare, to wit: "There is strong evidence that global sea level gradually rose in the 20th century and is currently rising at an increased rate"; "by the end of the century, globally averaged sea level is projected to rise between 0.18 and 0.59 meters relative to around 1990"; "it is very likely that heat waves will become more intense, more frequent, and longer lasting"; "it is likely that hurricanes will become more intense"; "wildfire and insect oubreaks are increasing and are likely to intensify."

These statements demonstrate that the Administrator has found that greenhouse gases are endangering public health and welfare.  For one thing, the Administrator does not equivocate about existing problems relating to climate change or about the possibility of future harms.  His findings -- including words such as "unequivocal" and "likely" -- easily meet the Clean Air Act's standard of reasonable anticipation of endangerment.  Indeed, his decision contains numerous examples of how greenhouse gases are already harming public health and welfare.  In addition, the Administrator's description of the consequences of climate change relate directly to the key Clean Air Act concepts of public health and welfare.  Floods, droughts, hurricanes, wildfires, and the rest all clearly implicate health and welfare.  Thus, the decision amounts to a finding of endangerment that triggers mandatory regulatory action under numerous provisions of the Clean Air Act.

In his decision, Administrator Johnson says that he is not making an endangerment finding.  But Johnson cannot so easily avoid the consequences of his own conclusions.  Settled law makes clear that formal factual findings like those made in Johnson's decision constitute an endangerment finding under the Clean Air Act, no matter how the agency labels them.

After too many years of denial and avoidance, EPA has finally said something true and right about climate change.  It is too bad that it comes in the midst of a palpably unlawful decision preventing California and other states from regulating greenhouse gas emissions from cars.  But the decision denying the waiver will be reversed; there is no legal basis for it.  The endangerment finding, on the other hand, has real staying power.

The Transplant and Trolley Problems go to Court? Surgeon Charged with Hastening Death to Harvest Organs

In a previous post, I drew attention to some recent work in the cognitive science of moral judgment.  Hardly a recognized field a decade ago, today it is one of the most active areas of research in the cognitive and brain sciences, as Steven Pinker's recent essay on the moral instinct amply illustrates.  Much of this research centers on extensions of the philosopher Philippa Foot's famous transplant and trolley problems, an approach to moral psychology that my colleagues and I helped to pioneer (see, e.g., here, here, here, here, and here), and that has since become one of the major research paradigms in the field (see, e.g., here, here, here, here, here, here, here, and here).  I recently published two new essays on the topic, one of which is specifically concerned with these problems and is directed mainly toward philosophers and neuroscientists, and the other of which examines the broader role of conceptions of moral psychology in early American law and is directed primarily toward legal historians.

In today's New York Times, Jesse McKinley reports on what appears to be a real-life illustration of the transplant problem  -- not the standard version, in which a doctor kills a healthy patient in order to harvest his organs, but a familiar variation of it, in which the targeted patient is not healthy, but rather is already dying -- that has resulted in criminal charges being filed against a Stanford-trained transplant surgeon,  Dr. Hootan C. Roozrokh.  According to the story, Dr. Roozrokh, who has pled not guilty, is alleged to have deliberately hastened a patient's death in order to accelerate the harvesting of his organs for the purpose of performing much-needed transplants.  Apparently, the prosecution is the first of its kind in the United States.  It remains to be seen whether the case will test the proper scope of the traditional necessity or "choice-of-evils" defense, which some commentators have held or implied might justify or excuse this type of conduct, at least in certain circumstances.

Thanks to Georgetown law student Jill Pasquarella for the pointer.

New federal student loan forgiveness program

In Sections 302 and 401 of the College Cost Reduction and Access Act of 2007, Congress has created a sound federal student loan repayment program for high-debt, lower-income graduates, including a loan forgiveness program for those who spend ten years in full time public service (government agencies and non-profit organizations exempt from taxation under Sec. 501(c)(3) of the tax law.  The loan forgiveness program is available to all persons who borrowed for higher education (including both college graduates and those who have gone on for graduate or professional degrees), but it will be particularly valuable to law school graduates who contemplate careers in public service, because many of them have especially high debt to income ratios and will therefore receive substantial forgiveness after ten years.  In a forthcoming article in the Hofstra Law Review, I review the details of the how the program will work, the magnitude of its benefits to representative borrowers, and proposals for additional legislation to address its few weaknesses.  This article may be accessed at https://www.law.georgetown.edu/news/releases/documents/Forgiveness.pdf
Philip Schrag