Georgetown Law Faculty Blog

Cost-Benefit Jumps the Shark

The Department of Justice's Economic Analysis of Prison Rape

by Lisa Heinzerling

    Despite initial signs suggesting a different path, the Obama Administration has promoted the role of cost-benefit analysis in regulatory policy as fiercely as any administration before it.  Nothing demonstrates this more clearly, I think, than the Administration’s bizarre and unfortunate decision to apply cost-benefit analysis to measures to limit rape and sexual abuse. 

    Last month, the Department of Justice issued a final rule on rape and sexual abuse in confinement facilities.  The rule was required by the Prison Rape Elimination Act ("PREA"), a law passed by a unanimous Congress and signed by President George W. Bush.  In PREA, Congress directed DOJ to set national standards to prevent, detect, and respond to rape and other forms of sexual abuse in federal, state, and local confinement facilities.  PREA did not say that DOJ should do a cost-benefit analysis to decide whether actions to prevent, detect, and respond to rape and sexual abuse in prison are worth it.  On the contrary, the only limit that Congress placed on DOJ's national standards was that the standards were not to impose "substantial additional costs" beyond the present expenditures of the covered facilities.  In its final rule setting the national standards called for by PREA, DOJ easily found that its standards complied with this statutory constraint.   In three quick sentences, DOJ found that even full compliance with DOJ's standards would increase total expenditures by less than 1 percent and that this additional expenditure did not exceed the statutory limit of "substantial additional costs." 

    Nevertheless, under an Executive Order issued by President Obama in January 2011, and one issued by President Clinton in 1993 and embraced by Presidents Bush and Obama, DOJ went on to determine whether the benefits of its rule were justified by the costs. In its 168-page Regulatory Impact Analysis, DOJ treats the reader to a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse.

    Most awful is the Department's effort to put a monetary value on avoiding rape and other forms of sexual abuse in prison.  To even try to understand the Department's analysis, you need first to understand how cost-benefit analysis works.  Cost-benefit analysis, as applied to rules like DOJ's, tries to determine the monetary value of a particular regulatory outcome – here, preventing, detecting, and responding to rape and sexual abuse in prison – by asking what the outcome is worth, in dollar terms, to the people who will enjoy it.  To do this, the cost-benefit analyst can ask one of two more specific questions: how much money is the recipient of the regulatory benefit willing to pay to receive the benefit, or, how much money would this person demand in exchange for foregoing the benefit?  If an agency were trying to figure out the benefits of a rule protecting consumers against an unsafe product, for example, the cost-benefit analyst would ask how much those consumers would be willing to pay to avoid the risk posed by the product or how much they would be willing to accept in exchange for being exposed to the risk.

    Thus, it came to pass that, in supplying the White House with the cost-benefit analysis it had required under President Obama's Executive Order, the DOJ found itself in the remarkable position of asking how much money the victims of rape would be willing to pay to avoid rape and also asking how much money these victims would be willing to accept in exchange for being raped.  In the strange logic and twisted morality of cost-benefit analysis, the victim – not the perpetrator – must be willing to pay up to avoid the crime.  If not, well, too bad for the victim.

    Never mind that rape is a serious crime, not a market transaction.  Never mind that framing rape as a market transaction strips it of the coercion that defines it.  Never mind that the law under which DOJ was acting is the Prison Rape Elimination Act, not the Prison Rape Optimization Act.  In the topsy-turvy world of cost-benefit analysis, DOJ was compelled to treat rape as just another market exchange, coercion as a side note, and the elimination of prison rape as a good idea only if the economic numbers happened to come out that way.

    Compounding the outrage, DOJ went on to develop 17 different categories of rape and sexual assault and to provide monetary values of the benefit of avoiding each of these categories – thus providing, in its words, a "hierarchy" of the different ways of sexually violating prisoners.  Reading DOJ's analysis itself feels like a violation.  For example, to justify giving rape committed without physical force the same economic value as rape with physical force, DOJ offered a belabored treatment of why rape can be bad even if no physical force is used, relying substantially on public comments critical of DOJ's initial suggestion that rape without physical force was only one-fifth as bad as rape with such force.  One must wonder: was it really so hard for DOJ to realize that rape without physical force can be as devastating as rape with it?  Did DOJ – the Department of Justice, the legal arm of the U.S. government – really not understand this until the public comment period for this rule?

    Ultimately, the DOJ's problematic taxonomy of sexual abuse in prisons played no role in its rule.  Nor, even, did DOJ's overall economic analysis play any explicit role in the rule.  The final rule did not even allude to the many varieties of sexual abuse DOJ categorized in the Regulatory Impact Analysis, and the justification for the rule at no point stated that the rule was stopping here, rather than there, due to the specific conclusions of the economic analysis.  The painful economic analysis of prison sexual abuse is thus, cruelly and wastefully, gratuitous; the rule would have been the same without it.

    Why, then, did DOJ do this analysis at all?  The White House office responsible for reviewing agency rules – the Office of Information and Regulatory Affairs (OIRA) – could have told DOJ that it need not do a cost-benefit analysis for this rule.  It could have told DOJ that it understood that an economic analysis of prison rape and sexual abuse was analytically incoherent and morally problematic insofar as rape and sexual abuse are crimes of violence and coercion, not of consent, and cost-benefit analysis presumes consent.  No law would have been violated if OIRA had done this.  Indeed, even the Executive Order under which OIRA operates would not have been violated if OIRA had done this; it provides that OIRA may waive the cost-benefit requirement whenever OIRA wants to.  That OIRA did not waive the requirement here, nor see the incoherence of an economic analysis of a crime of violence, is deeply troubling.

    Applying cost-benefit analysis to rape takes this already-troubled methodology to a new, and bad, frontier.  The Obama Administration should ask itself whether this is the kind of legacy it hopes to deepen in a second term: a legacy that holds that any human encounter, no matter how violent and coerced, can be treated as just another day at the market.

Antibiotics, Animals, and Agency Discretion

by Lisa Heinzerling

    When an agency defends over three decades of inaction on an important problem by saying that acting would take too long, one hopes a judge reviewing the agency's inaction will see through the pretense.  This is exactly what happened this week, when a federal magistrate judge in New York ruled that the U.S. Food and Drug Administration had acted arbitrarily in citing time and resource constraints in declining to limit the use of antibiotics in animal feed. 

    Some 80 percent of the antibiotics used in the United States are given to animals destined to become part of our food supply.  Most of these drugs are given not to sick but to healthy animals; they are used not to treat disease but to promote animal growth or to prevent bacterial infections from occurring.  Both of these purposes are tied to the industrial nature of animal food production in this country.  The economic imperatives of industrial food production reward faster animal growth, and the microbial realities of the modern animal food production facility -- in which animals are tightly confined in stressful, bacteria-rich (to put it nicely), infection-promoting conditions -- encourage herd-wide administration of antibiotics to prevent infections. 

    The widespread administration of antibiotics to food animals for non-therapeutic purposes has contributed to the development and spread of antibiotic-resistant strains of bacteria.  When bacteria become resistant to an antibiotic, that antibiotic will no longer treat the infection the bacteria cause.  Antibiotic resistance is to our wonder drugs what Kryptonite is to Superman.

    The FDA must approve animal drugs before they are marketed.  The central criterion for approving such drugs is safety: the FDA has said that it will approve a new animal drug only if there is a "reasonable certainty of no harm to human health."  The FDA also may withdraw existing approvals for animal drugs.  Here, too, the central concern is safety.  If the agency finds that an animal drug now on the market is not safe, it must withdraw approval for that drug.

    Many antibiotics administered to animals were approved in the 1950s, soon after antibiotics became widely available and before resistant bacteria had begun to outrun them.  By the 1970s, however, the FDA was already actively studying the relationship between herd-wide administration of antibiotics to food animals and antibiotic resistance in the human population.  In 1977, the FDA found that feeding antibiotics to food animals to promote growth and prevent infection was likely to promote antibiotic resistance in humans and harm human health.  The agency therefore gave notice that it would hold hearings on whether to withdraw its prior approvals for certain antibiotics used for these purposes.

    The FDA never got around to holding those hearings and thus never got around to withdrawing the relevant approvals.  Yet the agency also never retracted its assertions -- which only grew in urgency and scientific credibility in the intervening years -- that feeding antibiotics to animals destined for human food consumption was not safe for humans.  Indeed, the FDA continued to sound the scientific alarm about the risks posed by widespread, non-therapeutic administration of antibiotics to food animals.  But still it did nothing to take the drugs off the market.  Not surprisingly, after watching the FDA sit still for decades, public health and environmental organizations eventually grew restless, and petitioned the agency to hold the hearings and to withdraw the relevant approvals.

     Last November, almost 35 years after finding that using antibiotics in animal feed was linked to antibiotic resistance in humans, the FDA finally answered the petitions.  By denying them.  The agency explained that in order to withdraw the approvals for antibiotics in animal feed, it would need to hold formal hearings.  This would be expensive and take a lot of time, the agency said, and so it would rather just ask the drug manufacturers and users to please practice "judicious" use of antibiotics in animal feed.  In denying the petitions, the FDA did not address the thousands of pages of scientific evidence the public health and environmental groups had offered in support of their claim that non-therapeutic use of antibiotics in animal feed was not safe, beyond saying that a hearing on the science would be a complicated affair.

    The FDA should have known better.  Several years ago, the U.S. Environmental Protection Agency found itself in a similar spot.  Environmental groups had petitioned the agency to regulate greenhouse gases from automobiles under the Clean Air Act, asserting that the statutory criterion for regulating -- the endangerment of public health and welfare by air pollution -- was met by greenhouse gases.  The EPA denied the petition, reasoning in part that it preferred to use voluntary rather than regulatory measures and that the science on climate change was complicated.  The matter eventually found its way to the Supreme Court, which held, in Massachusetts v. EPA, that the EPA had acted arbitrarily and capriciously in saying it would refuse to regulate greenhouse gases even if it had the statutory authority to do so.  The Court held that the EPA had erred by justifying its inaction by reference to policy concerns (such as the preference for voluntary measures) rather than by reference to the statutory framework of endangerment.  The Court did not order the EPA to regulate greenhouse gases, but it did direct the agency to take a meaningful look at the scientific evidence on climate change and to tie any decision it made to the legal framework under which it was operating.

    Of course, when the EPA eventually did take a hard look at the scientific evidence on climate change, it concluded that greenhouse gases do indeed endanger public health and welfare.  It has since embarked on the regulatory program required by the Clean Air Act for air pollutants that threaten health and welfare.

    The FDA's denial of the petitions on antibiotics in animal feed has the exact same flaws as the EPA's denial of the petition on greenhouse gases did.  The FDA grounded its decision not in the underlying statutory framework, but in its own preference for voluntary over regulatory measures.  The agency avoided altogether the scientific evidence on the risks of antibiotics in animal feed.  And, in a particularly ridiculous touch, the FDA complained that taking action on antibiotics in animal feed would just take too darn long.  This, from an agency that had first concluded in 1977 that widespread, non-therapeutic use of antibiotics in animals destined for the human food supply posed a risk to human health.  In 1977, Elvis was still alive, disco ruled, and Jimmy Carter was president.  FDA is an agency in a hurry, clearly.

    On Monday, the FDA got its comeuppance.  A federal magistrate judge rejected as arbitrary the agency's explanation of its denial of the petitions to withdraw approvals for the non-therapeutic use of antibiotics for food animals.  Magistrate Judge Theodore Katz held that the FDA erred, as EPA had in Massachusetts v. EPA, by failing to tether its decision to the underlying statute.  The judge also didn't buy for a minute the agency's complaint that the process for withdrawing its prior approvals would take too long.  Noting that the petitions to withdraw the approvals had been pending for many years, the judge observed: "The position that instituting withdrawal proceedings -- what the statute mandates -- is too time consuming is both ironic and arbitrary. Had the Agency addressed the Petitions in a timely fashion, withdrawal proceedings could have been commenced and completed by now."  In a footnote, the magistrate judge added: "One can only wonder what conceding the absence of an effective regulatory mechanism signals to the industry which the FDA is obligated to regulate."  Monday's ruling follows a March decision in which Magistrate Judge Katz held that the FDA had erred in refusing to hold hearings on the non-therapeutic use of antibiotics for food animals.

    Magistrate Judge Katz's latest ruling is a bracing reminder that agencies like the FDA cannot simply decline to exercise the responsibilities that have been given to them or refuse to confront the scientific evidence they have gathered.  Rather than compound absurdities by raising ever flimsier arguments in support of its inaction -- among other things, the FDA has argued to the court that its decision on antibiotics in animal feed was not a reviewable agency "action" -- the FDA should put its shoulder to the wheel and do the work the law has assigned to it.

Ozone Madness

(The following post corrects two small factual errors in the original post.)

by Lisa Heinzerling

            Today, President Obama announced that he had asked EPA Administrator Lisa Jackson to withdraw the final National Ambient Air Quality Standard (known as a "NAAQS") for ozone pollution, which she and her expert agency had sent to the White House for review.  The President's announcement is terribly bad news, and terribly bad policy, on several scores.

            1. Law: The reason the President gave for asking EPA to withdraw its standard is an unlawful reason.  President Obama explained that while his administration has taken actions (some only proposed) to strengthen protections under the Clean Air Act, he has, "[a]t the same time,  ... continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover."  "With that in mind," he explained, he had asked Administrator Jackson to withdraw the standards she had submitted to the White House.  But the Supreme Court has unequivocally held that the Clean Air Act forbids the consideration of economic costs in setting the NAAQS.  I suppose someone could argue that because the President decided only not to let EPA revise the existing air quality standard for ozone, rather than issuing a new standard, his explicit reliance on economic costs as the basis for that decision does not pose any legal problem.  But the fact is that the President has rejected a fully developed NAAQS on the basis of costs.  It is hard for me to see how that does not present a legal problem.

            The President's Executive Order on regulatory review, issued last January and indirectly alluded to in the President's statement on ozone, does not -- and cannot -- override the requirements of the Clean Air Act.  The Executive Order itself explicitly states that it "shall be implemented consistent with applicable law."  And in any event, the President does not have the authority to undo clear directives from Congress.

            2. Science: The Clean Air Act, as conclusively interpreted by the Supreme Court, requires EPA to set the NAAQS based on the scientific evidence of harms to public health posed by the air pollutant in question.  One of the decisions most decried by critics of the Bush-era EPA was its NAAQS for ozone, set in 2006.  In issuing its standard, the Bush-era EPA departed from the advice of its scientific advisors and set a less stringent standard than the scientific advisors had recommended.  It is hard to see how President Obama's decision today reflects an attitude toward science that is any more respectful than the attitude the Bush administration displayed in its 2008 ozone standard.  What is more, it seems that EPA will now be required to defend that Bush-era standard in court, which means that the agency may well make arguments about the shape and scope of EPA discretion under the NAAQS program that the agency will come to regret when and if it attempts, some time in the future, to set an adequately protective standard in the face of inevitable industry opposition.

            3.  Economics: Weirdly, even though President Obama stated that economic concerns were his reason for asking EPA to withdraw the ozone standard, shortly before this announcement was made, a White House blog post extolled the economic virtues of the Clean Air Act.  This is a statute that has returned over 30 times the amount in benefits that it has imposed in costs.  It is one of the most successful pieces of public health legislation ever.  And the White House seems to know it.  Stranger still, then, that President Obama used economics as the cited reason for asking EPA to take back the standard.

            4.  Transparency:  President Obama has made open government one of the central themes of his administration.  When rules like the ozone NAAQS go to the White House for review, they are accompanied by a detailed explanation of the agency's reasons for deciding the way it did; this is the document that, if the White House clears the rule, will appear in the Federal Register as the agency's explanation for its rule.  The ozone NAAQS was sent to the White House for review in July.  Thus there exists a full package from EPA containing the final rule and the explanation for it.  The least the White House can do at this point is to release that package.  Let the public know what EPA concluded in its final package about the harmful effects of ozone pollution.  Let states and local governments take that information and decide whether to strengthen their own pollution standards in light of what EPA has found.  Let citizens decide what actions to take in light of that evidence.  As President Obama explained when he issued a memorandum directing agencies to adopt a presumption of disclosure under the Freedom of Information Act: "Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve."  It is hard to see a public-regarding reason for not disclosing the EPA's explanation of the science on ozone and the public's health.

Philip Schrag on "Why Would Anyone Want to Be a Public Interest Lawyer?"

Ten reasons in his speech for the Delaney professorship, available here.

International Development Assistance for Health: Ten Priorities for the Obama Administration

 

            President-Elect Obama has a strong commitment to, and policy on, international development assistance for health. However, during the election, he rarely discussed global health, and with the financial crisis he may turn his attention to pressing economic issues. America’s commitment to global health is not only a moral imperative, but also is critically important to our national interests in security, trade, and human development. A major initiative by the new President on Global Health Diplomacy would help transform America’s world image. Here, I offer ten priorities on global health for the Obama Administration.

 

            With a new administration starting in January, it is an opportune time to propose fundamental reform of America’s policy on development assistance for health:

 

1.    Appoint a cabinet level official on international aid. Development policy cuts across multiple sectors, including foreign affairs, health, agriculture, energy, and the environment. A cabinet level official with direct access to the President is needed to advocate a “health in all policies” approach and coordinate the currently fragmented activities across agencies.

2.    Fulfill America’s pledge to devote 0.7% of GNI per annum to ODA. America should fulfill its pledge to ensure scalable and sustainable global health assistance. G8 leaders in Toyako, Japan this year reaffirmed their long-standing pledges, while committing to full, annual measurements of progress.

3.    Meet basic survival needs of the world’s poor. American aid should be directed primarily to meeting what I call “basic survival needs,” including sanitation and sewage, pest control, clean air and water, diet and nutrition, tobacco reduction, and essential medicines and vaccines. Meeting everyday survival needs may lack the glamour of high-technology medicine or dramatic rescue, but what it lacks in excitement it gains in impact by targeting the major determinants of health.

4.    Strengthen health systems. American aid should aim to improve health systems in developing countries, including human resources, data systems, laboratories, primary care, and public health infrastructure. The G8 experts group in Toyako recommended, and countries committed to, health system improvement as a better way to improve health for the world’s poor.

5.    Reverse the “brain drain.” The WHO estimates that 4.3 million more health care workers (HCWs) are required to meet the Millennium Development Goals, particularly in Africa, which has 25% of the world’s disease burden, but only 3% of the world’s health workers. Rather than improving the workforce in developing countries, the U.S. actively recruits HCWs. The U.S. should build the supply of skilled workers at home, limit international recruitment, and “give back” by building human resources in poor countries through cash payments, scholarships, clinical training, and HCW exchanges.

6.    Improve maternal, newborn, and child health. Each year more than half a million women die in pregnancy, and the same number of children die from easily preventable causes such as diarrhea, pneumonia, and malaria. Many women and children would survive if they received antenatal and postnatal care, skilled birth attendants, childhood vaccines, adequate nutrition, and inexpensive lifesaving interventions.

7.    Create fair trade for developing countries. The United States has aggressively defended free trade through the World Trade Organization, as well as even more stringent regional and bilateral treaties. This has created obstacles for poor countries in accessing essential vaccines and medicines, developing domestic health and safety protections, or competing fairly with richer countries. The world’s poorest people, for example, were made even more vulnerable when the wealthy West and rising East refused to eliminate farm subsidies, leading to the collapse of the Doha round of agricultural trade negotiations.

8.    Collaborate and coordinate with multiple players. A proliferation of actors now occupy the field of global health, resulting in rampant problems of fragmentation and duplication in a sea of funding and activities that span the global health domain. Related to fragmentation is the growing competition between foreign aid workers and local service providers, hindering efforts at greater country ownership and control. The U.S. should work with stakeholders and consult local leaders to foster effective partnerships, create synergies, and avoid destructive competition.

9.    Promote accountability, transparency, and monitoring. Accountability in global health is problematic. WHO is accountable to its Member States, but often lacks detailed and realistic targets. States are accountable to their electorate, but routinely renege on pledges to the poor. Civil society, foundations, and corporations report to an array of different interest groups and cannot be held accountable for their failures. The U.S. should work with the international community to create rules for accountability, transparency, and monitoring progress to achieve goals.

10. Agree to fair terms of international cooperation on global health. The U.S. has been resistant to global health governance, refusing to ratify vital treaties or work cooperatively. The U.S. could make a genuine difference by agreeing to fair terms of cooperation through international agreements, such as a Framework Convention on Global Health. See Lawrence O. Gostin, Meeting Basic Survival Needs of the World’s Least Healthy People: Toward a Framework Convention on Global Health, 96 Georgetown Law Journal 331-392 (2008), available at http://ssrn.com/abstract=1014082.

 

Effective global health governance could dramatically improve life prospects for millions of people and diminish our collective vulnerabilities. That is an ideal worth pursuing by President-Elect Obama.

Lawrence O. Gostin, Linda and Timothy O'Neill Professor of Global Health Law, Georgetown Law

New articles by Don Langevoort and Paul Rothstein

Don Langevoort and Paul Rothstein have just posted papers to SSRN and BePress.

Don Langevoort's article, U.S. Securities Regulation and Global Competition, is forthcoming in the Virginia Law & Business Review and can be downloaded from BePress and SSRN.

Abstract:

This essay introduces and comments on three articles in the Virginia Law & Business Review that address important questions of international competitiveness and U.S. securities regulation: the evolution of the Rule 144A market as a way for foreign issuers to tap U.S. capital without submitting to a mandatory disclosure regime; the emergence of international accounting standards to which the SEC seems eventually ready to submit; and "best execution" differences between trading platforms in the U.S. and the E.U.

Paul Rothstein's article, Comments on Swift and Slobogin: Mental State Evidence, is forthcoming in the Seton Hall Law Review and can also be downloaded from BePress and SSRN.

Abstract:

Excellent, thought-provoking articles have the capacity to inspire readers to take up their own pens or computers. The Articles published in the Guilt vs. Guiltiness Symposium of the Seton Hall Law Review are definitely of that quality. They have prompted in me a number of reflections, a few of which I have set forth below, concerning two of the Articles—Christopher Slobogin’s and Eleanor Swift’s.

These two Articles have much in common. Each concentrates its fire on a particular evidentiary exclusionary rule when applied to bar pieces of a criminal defendant’s evidence of his state of mind. Professor Slobogin argues that the full Daubert scientific reliability rule should not apply to a criminal defendant’s expert psychological evidence of his past mental state because such states are not susceptible of strict scientific proof. Professor Swift deplores what she believes is a defense-evidence-restricting misinterpretation of the hearsay exception for defendant’s state of mind. Both base their arguments on the narrative or story-telling view of trials. Because juries are in the business of choosing among alternative, plausible stories of guilt and innocence, a criminal defendant should be able to tell, with some degree of richness, his story of what unfolded and the kind of person he is. The authors allege these rules or rulings prevent a defendant from doing so.

Both Articles are finely nuanced contributions to the field and provide useful perspectives on some vexing problems. But I think they both have implications that go well beyond the particular evidentiary rules they address and well beyond evidence offered by a criminal defendant. Further, they make some assumptions about what present evidentiary law provides, thereby underplaying possible alternative readings of that law.

John Mikhail: Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge

A new paper by John Mikhail, Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge, has been posted to SSRN. 

This paper will be published in The Psychology of Learning and Motivation: Moral Cognition and Decision Making, Volume 50 (D. Medin, L. Skitka, C. W. Bauman, & D. Bartels eds., Academic Press 2009).

Abstract:

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of crime and tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

What Paul Dean Did

On Wednesday, November 5, I delivered the following remarks at a faculty lunch devoted to reflecting on the passing this summer of Paul R. Dean, who served as dean of Georgetown Law from 1954 to 1969.  Although we were honored to have four of Dean's children with us, the audience I principally had in mind were my colleagues, especially those who had little opportunity to meet Dean and to learn of his contribution to the Law School.  I drew heavily upon The First 125 Years: An Illustrated History of the Georgetown University Law Center (1995) and an oral history that my colleague Peter Byrne and I conducted with Dean in 1991.

 In the annals of the history of American legal education, the year 1870 is almost invariably associated with the start of Christopher Columbus Langdell’s deanship at the Harvard Law School.  That it was also the year the Georgetown Law School was founded usually goes unremarked.  And that’s not really surprising: what might be called the “Harvard synthesis” has long dominated the history of legal education in the United States.  This interpretation takes the reforms of Langdell and his disciple James Barr Ames as the One True Way to run an American law school.  You get a sense of it from the titles of two chapters in Robert Stevens’s excellent Law School: Chapter 4 is “Harvard Decrees the Structure and Content”; Chapter 5 is “Harvard Sets the Style.”  The pull of the Harvard synthesis has been so great that each time Fred Konefsky and Jack Schlegel picked up another in the series of law school histories they reviewed in their 1982 essay “Mirror, Mirror on the Wall” they had the “feeling of inevitability, akin to reading a whodunit novel for the second time.”  Once whatever law school they were reading about established high admissions standards, a graded, sequential, and cumulative curriculum devoted to “pure law,” teaching via the case method, and a self-governing, full-time, scholarship-producing faculty, they observed, “the force of the narrative was spent” and the author was left to grope for a new theme.  Konefsky and Schlegel thought this very odd, because, as they put it, “only in the silliest, deterministic sense was the Langdellian revolution ever inevitable.”  If it were inevitable, it would mean that modern law schools could only be organized one way, and that struck them as a very unlikely proposition, especially in a polity and society like those of the United States, in which lawyers perform so many different tasks for so many different kinds of people.

    I mention all this so that you won’t take it the wrong way when I say that Paul Dean founded the modern Georgetown law school.  In fact, Dean was responsible for our adoption of many of the attributes of an elite law school, but he wasn’t interested in making Georgetown a Catholic Harvard.  He thought Georgetown could be excellent in its own way.  He didn’t envision some of the ways in which we’ve subsequently tried to be excellent, but his struggle to establish the principle of faculty governance and the open-endedness of his concept of a “Law Center” nonetheless made it possible for us to pursue excellence in our own way.

    Paul Dean was born in 1918 and raised in a small town southwest Youngstown, Ohio.  His mother had a eighth-grade education; his father, Edward,  a fourth-grade one.  Edward Dean started working as a water boy in a blast furnace at the age of twelve, advanced to become a manager of two blast furnaces and hundreds of coke ovens, before losing his job in the Depression.  He still managed to provide a college education for all of his sons, including Paul; who graduated from Youngstown State and then enrolled, in September 1940, at Georgetown. Initially rejected by his draft board, he got in two years of law school before leaving for the Navy. During this time he compiled an excellent academic record–in an interview with Peter Byrne and me he called it, with characteristic modesty, “pretty good”–and was named Editor-in-Chief, which, to hear Paul tell it, was “no big deal.”

    For over two years Paul served in the Pacific as the Supply Officer on the minelayer USS Monadnock.  After leaving his sea duty the Navy picked him as one of 38 people to take a course at the Harvard Business School on terminating war contracts.  He lived in a dorm and for four and a half months spent eight hours a day in classes devoted to business school cases.  He learned the elements of accounting, finance, and marketing from the business school’s eminent faculty. He was then assigned to Detroit, where he took law classes in the evening at the University of Detroit.  At the urging of the brother of a shipmate, Paul tried and succeeded in persuading Dean Blythe Stason to admit him to Michigan’s law school.  In the end, he decided to return to Georgetown to complete his legal education.  After graduating in 1946 he clerked for a judge on the D.C. Circuit and was offered a job in the Washington office of Cleary Gottlieb, after having impressed no less imposing a legal personage than Hugh Cox.  At the same time he was pursued by Notre Dame’s dean and the regent of Georgetown’s law school; the regent, Father Francis Lucey prevailed with an offer $500 a year more than Cleary Gottlieb’s–that is, about $4500 a year--not a small sum to a married man and father.

   Dean was one of a group of four young lawyers hired as members of the full-time faculty around 1947.  Particularly after his teaching load settled down and he started coaching Georgetown’s moot court teams he was–as he put it–“happy as a stump.”  Four years in a row he took teams to the national finals, winning twice and, after one defeat by split decision, having the satisfaction of being told by one of the dissenting judges, John W. Davis, that only some unspecified treachery had kept them from prevailing.  In addition to raising the reputation of the law school, the wins also marked Paul as the law school’s ablest young professor.  When in the spring of 1954 the school’s long-serving and increasingly feeble dean, Hugh Fegan, stepped down, Father Lucey asked Paul to take the job.

    To appreciate what Paul did in the next fifteen years as dean, you have to imagine a law school governed very differently than we are today.  From its founding through the late 1920s, the law school was, speaking generally, the project of a group of prominent Catholic lawyers of the same religion, political affiliation, and ancestry as Roger Brooke Taney.  Since 1928 the law school had been overseen by a Jesuit regent; since 1931 that regent had been Father Lucey.  At the time of his appointment Lucey had a doctorate in sociology from Georgetown but no law degree–a situation he would remedy between 1934 and 1941 by taking a few courses a year in the evening from faculty members whose salary he set.  With his degree in hand, he published several contributions to the neo-Scholastic case against the mainstream of American legal thought.  (He had especially harsh words for the legal realists and Supreme Court Justice Oliver Wendell Holmes.)  Along with most of the university’s board of directors, Lucey lived in the Jesuit community in the Jesuit Community in Georgetown University’s main campus, and, like the deans of the foreign service and medical schools, he governed his domain much like a feudal baron.

    By the 1950s Lucey relied heavily on the registrar, Marie Stoll, a registered nurse, to run the school; Fegan had long been cowed by the regent and had neither a secretary nor files.  Stoll scheduled classes, admitted students, made out payrolls, ordered supplies, maintained alumni files, prepared catalogues, and organized the graduate school.  She also was a member of the executive faculty, a common institution at Catholic law schools, which permitted regents to govern through a handful of handpicked faculty members.  No professor had tenure; teaching loads were high; the faculty was overwhelming Catholic and graduates of Georgetown.  The faculty’s publications were, with a few notable exceptions, such as Walter Jaeger’s edition of Williston on Contracts, limited to casebooks–often distributed in mimeo–and bar journal articles. Lucey prepared the budget without any input from the faculty.  When faculty members pushed for a formal guarantee of academic freedom, they were permitted to speak their minds about the subject of their classes, but only insofar as their views were “consistent with the moral principles and religious beliefs to which Georgetown University is dedicated.”

    Much about how Dean won control of the school for the faculty during what he later called “the extremely difficult years from 1954 to 1961" is quite obscure.   Many members of the faculty wore their identity as a university professor lightly and were hard to organized, but the associate dean for the graduate school, Frank Dugan, was a reliable second.  Probably decisive was support from Hilltop.  As I have it from my colleague Sherman Cohn, who was a student at the law school in the 1950s, the head of the Jesuit’s Maryland province was deeply concerned about the financial condition of the university and appointed a president, Edward Bunn (pictured at left), and an academic vice president, Brian McGrath (pictured at right), to put things right.  The law school would be a significant part of any solution Bunn found. 

    At Paul’s suggestion, Bunn convened meetings of the law school’s executive faculty in his office and slowly Dean made progress.  At first, Lucey would simply call Paul in and tell him what he thought Paul needed to know about the budget.  (Paul told Peter and me that from these sessions he became an expert at reading upside down and at a distance.)  By 1957 the law school had a budget committee and Paul could report that Lucey had made “a full disclosure” of the school’s finances.  In the same year, with President Bunn’s support, the executive faculty resolved to hire faculty who weren’t Georgetown alumni so as “to avoid inbreeding.”  The new hires pressed for more support for scholarship and for ending the exclusiveness of the executive faculty.  In a tortuous process, a constitution was drafted and debated; one of its main provisions would make the dean the “sole administrative head and official representative”of the law school.

    Matters appeared to come to a head in 1960.  Bunn appointed another Jesuit, Dexter Hanley, to the law faculty, over Lucey’s bitter opposition, and he directed Marie Stoll to report to Dean, although she continued to resist.  After a meeting that summer, Paul was convinced that Bunn was about to intervene decisively with Lucey and fire Stoll; instead the Jesuit community and the Maryland province announced a series of celebrations of Lucey’s life and work.  Lucey accepted the praise lavished him during these public events but declined to relinquish power.  Then in April 1961, an extremely critical accreditation report strongly sided with what its authors called Georgetown’s “able, respected, forthright, and diplomatic decanal staff” and disputed the representations of the regent.  At last, in the summer of 1961, the Jesuit provincial directed Lucey to step aside and let Brian McGrath serve as regent.  President Bunn announced the change and the appointment of two members of Dean’s second championship moot court team, Kenneth Pye and Richard Gordon, as Associate and Assistant Dean.  He also fired Marie Stoll, who had remained at her post despite requests for her resignation.

    When Paul took stock of the law school in his first year as the undisputed leader of the law school, he thought of it as a kind of “wheel of misfortune.”  When you mentally spun it, whatever phase of the law school came up needed an enormous amount of work.  The student body was academically weak.  Faculty salaries were too low.  The student-faculty ratio was too high.  Without sabbaticals the faculty could not meet “the research obligations of a major law school.”  Relations with alumni were “not good.”  The library was “clearly inadequate.”  The school had no full-time placement officer; the graduate school lacked “substantial intellectual content.”  The curriculum had no required course in legal research and too few electives.  High attrition and the admission of students at times other than in the fall were damaging student morale.  But his highest priority was a new home for the school. “Aesthetically,” Paul told Bunn, the existing buildings were “a nightmare.”  The row houses used as dormitories fell so far short of the fire and housing codes that they would have to be closed, and the library sprawled over thirteen floors in three different buildings.

     I attempted to explain how Paul, with the help of Ken Pye, Dick Gordon, and, later Dave McCarthy, advanced simultaneously on all these fronts in the institutional history that Judy Areen commissioned for our 125th anniversary.  Rather than try to go over that ground here, I’ll just discuss Paul’s rebranding of the Georgetown Law School as the Georgetown University Law Center in the 1950s.  Paul told Peter and me that the older name had no real luster among lawyers.  The “Georgetown Law School” was reputed to give its students an adequate preparation for the bar and occasionally to turn out an exceptional trial lawyer, such as Edward Bennett Williams, but that’s about it.  Paul wanted Georgetown to be the venue for an exciting variety of professional activities and seized upon the term “Law Center” which recently enjoyed a certain among legal educators, as a rubric.  In the academe, most “centers” usually don’t have one, and that was true of Paul’s.  As he put it, “the center was just a device for me to attempt to” get various kinds of activities started up at Georgetown, sometimes on the initiative of a dean, sometimes on the initiative of a faculty member.  He devoted much energy to turning a rather miscellaneous graduate curriculum into a coherent school of “Advanced Legal Education.”  Institutes came and usually went: the Institute for International and Foreign Trade Law, the Nuclear and Space Institute, an Institute for Church-State Law, and an Institute for Law, Human Rights and Social Values,” headed by the Jesuit Dexter Hanley, who was assisted by Sherman Cohn.  Paul told Peter and me that he was particularly proud of Hanley’s institute, because he thought that, as a law school in a Catholic university, Georgetown had an obligation to study the intersection of law, philosophy and religion.  The bellwether of our clinics, the Prettyman program, dates from Paul’s deanship; and his associate dean Ken Pye brought in considerable grant money relating to the criminal justice and the war on poverty.  Finally,  five-year, million dollar grant from the Ford Foundation in 1965 funded the Institute of Criminal Law and Procedure and brought Sam Dash to the Law Center.

    At the same time Paul continued to hire faculty who were, as he put it, “better than we were”–that is, the graduates of elite law schools committed to producing scholarship.  Some hires helped where we lagged behind elite schools–Donald Schwartz and Ed Bradley plugged an embarrassingly large gap in corporation law--but others went to our more distinctive educational mission.  Jack Murphy, for example, taught a seminar on poverty, and Addison Bowman helped staff a new, first-year course on criminal justice.  The new hires created their own momentum for further change, and toward the end of his deanship Paul founded himself, as Pye saw it, caught between “an old guard, some of whom oppose any change at any time,” and “young turks, some of whom wish to reform the world yesterday.”  Several respected and popular professors left in the summer of 1967 for various reasons; one complained about the pace of change and prompted talk of a “brain drain.”

    That said, no single event or concern seems to have persuaded Paul to give up the deanship, which he resolved to do in November 1967 but wasn’t finally permitted to do until June 1969.  In his oral history, he mentioned the general sense of weariness that settled upon him whenever he realized he was having the same discussion about the same curricular matter for the fourth time in his deanship.  I also think he realized that the faculty he built needed a different kind of leader.  “I’m not as much of a participatory democrat as a lot of deans,” he told Peter and me, “and there was a lot of that” in the 1960s.  And I think that, after having seen Father Lucey confuse his own beliefs with the good of the institution, Paul wasn’t about to make the same mistake.

    Before he stepped down, however, Paul had one more chance to argue that Georgetown Law could be great without being like any other great law school.  Back in 1961, the accreditation report that precipitated Father Lucey’s ouster concluded that “at least one top-flight law school should be located in Washington,” that there was none at the time, and that the Georgetown Law Center could be it if it played its cards right.  During the winter of 1968-69, it seems, the committee searching for Paul’s replacement concluded that the only way to make Georgetown a “top-flight law school” was to choose as dean someone with impeccable establishment credentials.  Word that the committee was acting on advice to name some “Ivy-League Professor” and not “a Ghetto Catholic” provoked Paul to protest in unusually harsh terms about the “masochistic tendency” that that sentiment evidenced.  “I detest those Georgetown alumni and faculty who seek some illusory form of external recognition or acceptance through self-deprecation, breast-beating, and carping criticism of our own achievements and our own personnel,” he complained. 

    In January 1969 the search committee unanimously recommended the appointment of Adrian Fisher (pictured at right), a graduate of the Choate School, Princeton University and the Harvard Law School, a protege of Felix Frankfurter’s, and a former Covington & Burling lawyer, among other things.  He was exactly the kind of person Paul had argued against, but when asked his opinion of Fisher, Paul replied that the committee could not have made a better choice.  “I await his arrival with joy,” he assured university officials, “and have promised to be unobtrusive the moment he dons the robe.”

     I’ll close not with my own assessment of Paul but with that of someone who knew him much better than I did.  David McCarthy, who succeeded Fisher as dean, called Paul Georgetown’s “Founding Dean” and said that he accomplished something “unique in the annals of legal education.”  At the same time that he “committed Georgetown to becoming one of the nation’s elite law schools,” he retained and strengthened aspects of it that other elite schools had forgone, including an evening division, an unparalleled clinical program, and courses in trial and appellate advocacy.  “In building for the future,” McCarthy concluded, Paul “did not sacrifice the treasures of our past.  Indeed, he made them pillars of our present prominence.”

New Article on Biosecurity by Larry Gostin

Larry Gostin's piece, "Biosecurity Policy: Are We Safer Today?" and published in Emerging Issues, is now available at LexisNexis, BePress and SSRN.

Abstract:

Lawrence O. Gostin analyzes biosecurity policy since 9/11. He begins with the question: Are we safer now? Then comes a review of biosecurity legislation, followed by discussion of planning to deal with specific diseases and the problems with such an approach, and then an explanation of what the right approach is. He concludes by covering the Model State Emergency Health Powers Act and related civil liberties questions.

Stephen Cohen on the tax consequences of clothing

In particular, Sarah Palin's clothing for her Vice Presidential candidacy.  His analysis appears in the Huffington Post.