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2015

Striving for Herd Immunity

Andrew Janet

This Comment argues in favor of large-scale reform that would make it much more difficult to avoid immunizing children. Part I provides background on the sources of this problem and contends that there is an extremely strong state interest in eradicating diseases to which the countervailing individual interest in pursuing an adherence to junk science should pale in comparison. Part II argues that the state exemptions for religious and personal beliefs are both unnecessary and, again, misguided given the strong state interest in eradicating diseases. Part III explores the possibility of universal state-level or federal-level mandates for vaccination. The country has allowed the destructive impact of Jenny-McCarthyism to run rampant for far too long.

Andrew Janet, Striving for Herd Immunity, 90 N.Y.U. L. Rev. Online 1 (2015).

2014

Re-Analyzing Cost-Benefit Analysis: Toward a Framework of Function(s) and Form(s)

Robert B. Ahdieh

For decades, the Securities and Exchange Commission has voluntarily evaluated the costs and benefits of its proposed rules. Since 1996, it has separately complied with the statutory mandate of Section 106 of the National Securities Market Improvement Act to “consider, in addition to the protection of investors, whether [an] action will promote efficiency, competition, and capital formation.”[1] Until recently, however, the courts have shown little inclination to question those assessments.

Over a series of recent cases—culminating in its decision in Business Roundtable v. SEC—the D.C. Circuit has demonstrated a dramatic change of heart.[2] Reviewing a new rule authorizing shareholder access to the proxy to nominate board members—a rule that was heatedly debated over at least a decade, that was substantially revised in the face of public comment, and that was explicitly authorized by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010—the court held that the SEC’s more than seventy-five pages of analysis fell short of the requirements of Section 106.

Especially coming in the traditionally insulated realm of financial regulation, the court’s seemingly high bar for the conduct of cost-benefit analysis generated significant controversy—and concern. The shareholder proxy access rule was thus the first of nearly a hundred delegations to the SEC enumerated in the Dodd-Frank Act—among other regulatory undertakings it mandates. If Business Roundtable is to be taken at face value, then, the implementation of Dodd-Frank—including future rulemaking on the Volcker Rule, on securitization, and on derivatives trading—may be in significant jeopardy.

The analysis of Section 106 in Business Roundtable may thus offer a valuable opportunity to define the proper scope of cost-benefit analysis in financial regulation. Yet it is also useful more broadly. With its extension of cost-benefit analysis beyond the conventional universe of environmental law, occupational health and safety, and other areas of risk regulation, Section 106 and its interpretation in Business Roundtable also offer an occasion to begin defining a framework for analyzing cost-benefit analysis more generally.

Scholarly assessment of cost-benefit analysis has tended to focus on its normative wisdom. Perhaps for that very reason, it has commonly approached it as a fairly singular phenomenon. This begins with the assumption of efficiency—loosely defined, if at all—as the implicit function of cost-benefit analysis. To similar effect, it has ordinarily been evaluated as a particular method of regulatory decision-making, rather than as an umbrella encompassing an array of related, but distinctly operationalized, approaches to analyzing the “costs” and/or “benefits” of alternative regulatory choices. Especially if cost-benefit analysis is to find relevance beyond risk regulation, however, we will need to be more ecumenical as to both its functions and its forms.

To that end, I begin by offering a typology of the potential functions of cost-benefit analysis—both dissecting its asserted “efficiency” benefits and outlining a set of non-efficiency functions it might also be understood to serve. Further, I outline a framework for evaluating the appropriate form of cost-benefit analysis in any given setting. With this framework of potential functions and forms, in turn, it becomes possible to properly evaluate the consideration of efficiency, competition, and capital formation under Section 106.

In financial regulation, as elsewhere, cost-benefit analysis may foster efficient ends or be paralyzing. Once we more fully appreciate the range of functions it may serve, and the varied forms it may take, we become that much more likely to apply it in ways that encourage the former, and avoid the latter.

I. The Function(s) of Cost-Benefit Analysis

An understanding of the increasingly varied universe of cost-benefit analysis requirements faced by regulatory agencies—and of the demands of Section 106 in particular—must begin with a more systematic framework than has previously been offered, of the multiple potential functions of cost-benefit analysis in any given case. To what ends do we engage in such analysis? What purposes should it be understood to serve?

A. Efficiency Functions of Cost-Benefit Analysis

Dissecting the generalized assertion of efficiency as the purpose of cost-benefit analysis, one might identify three distinct species of efficiency such analysis could serve. At the most basic level, cost-benefit analysis might be understood to promote allocative efficiency in rulemaking—maximizing the return on our investments in regulatory compliance and enforcement. Minimally, this might involve the preclusion of regulatory initiatives as to which the latter investments outweigh any potential benefits. More ambitiously, cost-benefit analysis might be argued to yield Pareto-optimal outcomes, in which the aforementioned regulatory costs are expended in such a way as to yield the greatest possible benefit.

Cost-benefit analysis may also serve a distinct efficiency function, in the face of bounded rationality. Both among the general public and regulators themselves, cognitive biases including framing effects, anchoring, and loss aversion may distort decision-making. Overestimation of the risk of cancer, and underestimation of the cost of avoiding it, for example, may distort public preferences as to environmental protection standards. Agency officials may generate their own cognitive biases, meanwhile, including given their single-minded orientation to their own agency’s discrete and insular mandate.

In the face of such biases, cost-benefit analysis may serve a salutary purpose. Both in its information-revelation function and in its requirement of a more systematic weighting of costs and benefits, it may help to reduce the prospect that misperceptions of facts will impact regulatory choices—thereby enhancing the efficiency of regulatory decision-making.

Cost-benefit analysis might lastly be seen to promote efficiency in helping to shape agency priorities. It might be hoped, thus, that cost-benefit analysis would serve to highlight potential targets for regulatory initiative that would otherwise go overlooked.[3]

B. Non-Efficiency Functions of Cost-Benefit Analysis

Beyond dissecting the generalized claim of efficiency into more precise efficiency functions, it is important to recognize a range of purposes of cost-benefit analysis not grounded in any promise of efficiency. While less commonly acknowledged, let alone explored, these may be important functions of cost-benefit analysis—including in financial regulation.

At the most basic level, cost-benefit analysis can be understood as simply a device to contract the amount of regulatory activity. With its most prominent expansions during the earliest days of President Ronald Reagan’s first term in office and the mid-1990’s Contract with America, some anti-regulatory function for cost-benefit analysis seems indisputable.

It might also be understood as a means to promote the generalized well-being of the public, even if its capacity to promote formal efficiency is more limited than its advocates would suggest. As it turns out, thus, neither Pareto nor Kaldor-Hicks efficiency may be practicable goals for cost-benefit analysis to achieve.[4] By fostering movement toward somewhat improved outcomes, though, it may nonetheless improve well-being.

Beyond the foregoing, a related pair of non-efficiency functions of cost-benefit analysis might be increased transparency in rulemaking and enhanced agency monitoring by executive and/or legislative authorities. By disclosing information about regulatory priorities and choices, cost-benefit analysis may minimally help to enhance public awareness—and thereby increase agency accountability. Separately, it might also reduce informational asymmetries that characterize the principal-agent relationship between the political branches of government and agencies, fostering better alignment of agency action with democratic demands. In each of these ways, cost-benefit analysis may also help to reduce interest group influence.

Finally—and importantly, as to Section 106—cost-benefit analysis may sometimes serve as a means for the legislative or executive branch to demand agency consideration of particular factors, in their decision-making. While the organic statutes of regulatory agencies commonly include such enumerated factors, cost-benefit analysis requirements may be an alternative means to those ends—perhaps especially where the political consensus for an explicit change in the enumerated considerations would be difficult to achieve. This might be the case, in particular, where the factors to be added can be understood to cut against the emphasis or orientation of the existing statutory framework—as might plausibly be said of Congress’ addition of Section 106 to the organic statutes of the SEC.

II. The Form(s) of Cost-Benefit Analysis

Having outlined a broader range of potential functions of cost-benefit analysis than is commonly considered, it is important to recognize a broader range of forms that cost-benefit analysis might take as well. Depending on a number of variables, cost-benefit analysis could look very different in any given case than conventional accounts would appear to admit.

As to the source of law that stands behind an agency’s conduct of cost-benefit analysis, to begin, one might expect at least some variation in the form of any cost-benefit analysis, depending on whether it is legally required, is merely authorized, or is entirely voluntary. Choices of form might further be impacted by whether the relevant source of law is statutory or regulatory, and whether it is directed to a particular agency or is more generally applicable. Each of these factors may speak to the nature of the obligation to conduct cost-benefit analysis, the form the latter takes, and the nature of any review that follows.

The nature of the agency engaged in the analysis might also be relevant to its form. In assessing questions of form, for example, we might consider whether the relevant regulator is an independent or executive agency. Minimally, this might impact the scope of review. But it might also speak to the relevant obligation of the agency as procedural versus substantive—i.e., as requiring the agency simply to conduct the relevant analysis, or to align its rulemaking with its findings. One might also have different expectations for cost-benefit analysis by independent agencies, given their more limited size, budgets, and mandates.

Turning from the agency conducting the analysis to the nature of the question to be analyzed, the complexity of the underlying issue, as well as any distributional features of either the question itself or of any cost-benefit analysis of it, can be expected to impact the form that analysis will take. Focusing on the distributional dimension, significant informational asymmetries, or even mere wealth differentials, may reduce the validity of relevant preference functions—and of any conclusions cost-benefit analysis derives from those preferences. Certain calculations of costs/benefits, meanwhile, may themselves have a distributional quality. Under Section 106, for example, the promotion of “capital formation” does not serve all investors equally, but primarily advances the interests of institutions—perhaps even at the expense of retail investors. This distributional quality must minimally impact the scope of any judicial review, but might also be expected to impact the nature of the agency’s obligation.

Finally, the form of cost-benefit analysis might be expected to vary, based on features of the particular variables to be considered. This begins with whether the agency is tasked to weigh “costs” and “benefits” alone, or whether the calculus involves two or more distinct variables—be they “efficiency, competition, or capital formation,” or otherwise. The quantifiability of the variables might be a further question, with less tractable ones counseling less formal cost-benefit analysis, for fear such formality may obscure relevant uncertainties. Lastly, the form of cost-benefit analysis can be expected to vary, where the variables cannot be measured on the same scale, such that they cannot readily be weighed against each another—as opposed to simply being considered in conjunction.

III. Cost-Benefit Analysis in Financial Regulation: An Analysis of Section 106

Having outlined a framework for more systematically evaluating a varied universe of cost-benefit analysis’ functions and forms, how might we situate Section 106 within that framework? As a preliminary matter, one might question whether Congress intended that provision to mandate cost-benefit analysis at all. While the language of Section 106 does not speak explicitly of costs and benefits, it does seem to hint at the latter. That hint is strengthened, in turn, by the provision’s legislative history. And as applied by the SEC and evaluated by the courts, it has essentially been read in that fashion.

More important, then, may be the question of whether—whatever Congress’ intent—we should evaluate the provision as a form of cost-benefit analysis. Within the conventional conception of cost-benefit analysis as simply a tool of efficiency, it is not easy to do so. This is minimally suggested by the text of Section 106 itself. More fundamental, however, is the disconnect between the analysis it prescribes and what would be necessary for a truly efficiency-enhancing evaluation of the SEC’s regulatory choices. The indeterminate nature of “efficiency, competition, and capital formation” as factors to be considered, the requirement merely to “consider” these factors, and the absence of any demand for (or possibility of) SEC balancing among the relevant factors—all counsel against an understanding of Section 106 as primarily directed to increased efficiency.

But this approach assumes too narrow a role for cost-benefit analysis. As suggested above, cost-benefit analysis may serve a variety of functions beyond promoting efficiency. In certain circumstances, cost-benefit analysis requirements may serve simply to force agencies to consider particular factors in their rulemaking. It is this function that resonates most closely with the mandate of Section 106.

It best fits, to begin, with the provision’s mandate of mere “consideration,” rather than “determination,” “calculation,” or even “analysis.” More broadly, it is suggested by the contrast with statutes that explicitly speak of weighing “costs” against “benefits.” The language of Section 106, by comparison, reads like an enumeration of factors for SEC consideration—with even “investor protection” not presented as a particularly countervailing variable, and the balance of variables capable of cutting both ways, as to many regulatory choices.

The enumeration of factors to consider is, to be sure, a more modest function than others enumerated above. Yet this too is consistent with the nature of Section 106’s adoption and incorporation into the organic statutes of the SEC. That it is modest, more importantly, does not make it minor. To the contrary, much of administrative law is built around the requirement that agencies properly evaluate the factors enumerated by Congress.

As described above, this function can properly be understood—in appropriate cases—as a species of cost-benefit analysis. Where, as with Section 106, the factors to be added to the mix will often cut against outcomes favored under the current analysis, Congress may find adoption of a carefully designed cost-benefit analysis requirement effective to advance its goals, yet far more politically palatable. With the adoption of Section 106, thus, Congress might be understood to have slipped in a requirement that the SEC’s longstanding pursuit of the benefits of investor protection theretofore be reconciled with its associated costs—in efficiency, competition, and capital formation.

If this is the properly understood function of Section 106, what further can we extrapolate from the above framework, as to the application of Section 106 in practice, and as to the scope of any ensuing review? In turn, we might consider the nature of the SEC’s obligation under Section 106, the nature of the analysis it conducts, and the nature of any subsequent review.

A. The Nature of the SEC’s Obligation

There can be little doubt that Section 106 imposes some obligation on the SEC. In light of the purpose of Section 106, its language, and the nature of the variables it enumerates, however, that obligation is properly understood to be limited. More precisely, it is procedural rather than substantive—mandating that the SEC consider the factors indicated, but not that it align its ultimate regulatory choices with that analysis.

The SEC’s purely procedural obligation under Section 106 is suggested, to begin, by the provision’s reference to mere “consider[ation]” of the factors. That this choice of verbiage meant something can be divined both from Section 106’s separate reference to the SEC’s duty to “consider or determine” the consistency of proposed rules with the public interest, and from application of that same formulation to the SEC’s analysis of “efficiency, competition, and capital formation”—in an earlier version of the language.[5]

The suggested function of Section 106—to enumerate additional factors for SEC consideration—also favors a procedural interpretation of the SEC’s obligation. Likewise, the distributional concerns that arise under Section 106. While the SEC might reasonably be expected to explore considerations of efficiency, competition, and capital formation in its rulemaking, the distributional implications of prioritizing even among those factors, let alone between them and its traditional mandate of investor protection, counsel against an interpretation of Section 106 to dictate the results of that rulemaking.

B. The Nature of the SEC’s Analysis

In defining the appropriate nature of SEC analysis under Section 106, three aspects might be highlighted: First, any attempt to rigidly quantify the variables at issue is ill-advised. Second, the SEC should avoid any attempt to balance the enumerated factors against one another. Finally, cost-benefit analysis under Section 106 should be designed to attend carefully to the distributional dynamics at work.

The significant utility of quantification in cost-benefit analysis goes without saying. Several factors counsel against it, however, in the context of Section 106. As above, this begins with the provision’s lack of explicit reference to “costs” or “benefits.” More generally, both the indeterminate nature of Section 106’s factors and their complexity undercut the possibility of their reduction to precise values. The multiplicity of factors adds further to this difficulty.

Beyond the challenges of quantification, it may be of limited relevance to an analysis under Section 106. This begins with the fact that Section 106 is not directed to the realm of risk regulation—where the conventional emphasis on quantification may have greatest force. Greater flexibility in the form of cost-benefit analysis might also be appropriate, given the new application of the practice that Section 106 represents.

The diminished relevance of quantification rests most significantly, however, on the distinct function of cost-benefit analysis under Section 106. However we precisely define the function of Section 106, the aforementioned reduction of cognitive biases and facilitation of agency monitoring are particularly difficult to reconcile with the context and nature of Section 106. Yet it is as to those functions that quantification is at the acme of its importance.

The poor fit of a “balancing” approach to Section 106 likewise begins with the language itself. Most critically, that language does not juxtapose “investor protection” and “efficiency, competition, and capital formation” in a way that suggests the balancing of one against the other. Rather, the new factors are to be considered “in addition to” investor protection. Beyond that, a balancing of the particular variables enumerated in Section 106 is not readily accomplished. Investor protection, competition, and capital formation may be efficient or inefficient, for example, depending on the circumstances. Competition may sometimes enhance investor protection, meanwhile, while undercutting it at other times.

This points to a final characteristic of cost-benefit analysis under Section 106, as we situate it within the above framework: Both the status quo equilibrium against which SEC rules are directed and Section 106’s analysis of those rules exhibit strong distributional characteristics. Cost-benefit analysis under Section 106 must be designed to attend to the latter. The evaluation of relevant costs and benefits may require appropriate discounting, for example, to address any distortions associated with the skewed distribution of assets and/or information. Enhancements directed to investor protection or capital formation need to be carefully weighed, meanwhile, in light of their skewed distribution of benefits to retail investors and sophisticated investors, respectively.

C. The Nature of Review

Beyond the SEC’s conduct of cost-benefit analysis under Section 106, what insight can the above framework offer as to the nature of any ensuing review? At the broadest level, one might expect such review to be more political than legal in nature.[6] As elsewhere, this begins with the text. Mere “consideration” lends itself less naturally to judicial review, than to political accountability. The indeterminate nature of the factors to be considered favors the same conclusion, as does the inability to simply balance them against one another. The distributional implications of the analysis, finally, also favor a more political approach to its review.

Given the statutory mandate of SEC consideration of efficiency, competition, and capital formation, some degree of judicial review is appropriate. Any such review should be circumspect, however, and highly deferential. Such deference is consistent with the traditionally limited judicial constraint on the SEC, as well as its expertise and independent nature. That the obligation to consider efficiency, competition, and capital formation comes by way of legislative initiative, rather than executive order—and in legislation specifically directed to the SEC—offers further grounds for such deference. A high degree of deference, finally, is also favored by the complexity and distributional character of SEC analysis under Section 106. If courts ever owe deference to administrative agencies, it is when they grapple with the difficult normative choices that arise in such circumstances.

Conclusion
In its analysis of Section 106, the D.C. Circuit got it both right and wrong. It correctly evaluated the provision as a species of cost-benefit analysis, notwithstanding its distinct prose. Yet it failed to recognize the distinct functions of the cost-benefit analysis mandated by that prose. It thus held the SEC to a standard of analysis ill-suited to Section 106’s true purpose, and demanded a form of analysis at least difficult to reconcile with the provision, if not directly contrary to its mandate. The court questioned the SEC’s conclusions—notwithstanding the lack of any requirement that such conclusions even be offered. And it offered simplistic critiques of the complex calculus Section 106 requires.

The lessons of Business Roundtable may be as important for cost-benefit analysis generally, however, as for Section 106 particularly. In actual application, the form of cost-benefit analysis can be expected to vary significantly from one setting to the next. This may hold true even where the identical legislative or executive mandate is imposed on one agency versus another. More importantly, across diverse statutes and regulations, cost-benefit analysis will necessarily take different forms. Given as much, it is essential that we evaluate cost-benefit analysis not against some platonic ideal, but in its particular context. Only when we do so can it properly be judged.

[1] National Securities Market Improvement Act of 1996, at §106.

[2] Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011).

[3] Cost-benefit analysis is most commonly assumed to reduce the scope of regulatory initiative. In its priority setting function, however, it may do just the opposite.

[4] See Matthew D. Adler & Eric A. Posner, Rethinking Cost-Benefit Analysis, 109 Yale L.J. 165, 188-89 (1999).

[5] See James D. Cox & Benjamin J.C. Baucom, The Emperor Has No Clothes: Confronting the D.C. Circuit’s Usurpation of SEC Rulemaking Authority, 90 Tex. L. Rev. 1811, 1821 (2012).

[6] See Eric A. Posner, Controlling Agencies with Cost-Benefit Analysis, 68 U. Chi. L. Rev. 1137, 1187-90 (2001).

Textualism and the Equity of the Copyright Act: Reflections Inspired by American Broadcasting Companies, Inc. v. Aereo, Inc.

Andrew Tutt

On April 22, 2014 the Supreme Court will hear argument in American Broadcasting Companies, Inc. v. Aereo, Inc., a case involving such technological boondogglery, such Rube Goldbergian skullduggery, such naked and unapologetic circumvention of the perceived purposes and aims of the Copyright Act and its enactors, that it will strike textualism at its very core. In doing so, however, Aereo offers an occasion for deeper reflection on how we should understand the Copyright Act. Is there space for equity in the Copyright Act? The answer is an emphatic yes. But that equity is not to be found in judicially fashioned equities, spun from abstract incantations of the Act’s purposes or values. The answer is in its text.

2013

Summary of Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement

Ingrid V. Eagly

Professor Eagly’s October 2013 article, “Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement,” is now online!

Please also enjoy this summary that she graciously prepared exclusively for the N.Y.U. Law Review website.

“Immigration kind of hogties you.”

—Assistant district attorney, Houston, Texas

“Very little for most people is scarier than the thought of losing a green card.”

—Deputy county public defender, Los Angeles, California

“People will voluntarily deport and we keep track of that. We move them to the administrative caseload to be sure they don’t come back.”

—Adult probation officer, Phoenix, Arizona

The deportation of “criminal aliens” is now the driving force in American immigration enforcement. In recent years, the Congress, the Department of Justice, the Department of Homeland Security, and the White House have all placed criminals front and center in establishing immigration enforcement priorities. By fostering immigration screening at local jails and courthouses, federal authorities have filled the deportation pipeline with migrants arrested by local police and prosecuted in county courtrooms. Criminals and others identified during criminal arrests, such as “repeat immigration violators” and “fugitives from warrants,” now constitute a full ninety percent of all persons removed from the country. In effect, federal immigration enforcement has become a criminal removal system.

The growing centrality of criminality to immigration enforcement is one of the most significant historical shifts in the federal immigration system. Yet, the influence of this transformation on the everyday practice of criminal law remains underexplored. The nascent scholarship in this area has concentrated on the treatment of criminals within the immigration system, rather than on noncitizens within the criminal system. Thus, although there is a body of research about the effects of criminal convictions on immigration adjudication, scholars have largely ignored the effects of immigration enforcement on bread-and-butter criminal charges brought in local criminal courts.

This lack of attention to the role that immigration plays in criminal adjudication is reinforced by two common misperceptions: The first pertains to the immigration system and the second to the criminal system. The first misperception is that immigration enforcement is restricted exclusively to the federal government. According to this description of the federal immigration system, local criminal justice agencies have no formal role in immigration enforcement. The second misperception is that immigration status and the desire to inform immigration outcomes are not factors in the adjudication of criminal cases. By this account, how crimes are charged or sanctions imposed at the local level, although fraught with race and class disparities, does not single out noncitizens for different treatment within the criminal system.

As this Article demonstrates, however, neither of these descriptions reflects the reality of criminal practice. Rather than restricted to the federal domain, immigration enforcement is now deeply intertwined with the local enforcement of criminal law. Indeed, the federal government has formally enlisted state and local authorities to assist with enforcement through, among other initiatives, cooperative agreements with local law enforcement. The idea that immigration is not part of the local criminal process is also losing credibility. Far from remaining blind to the immigration status of defendants, some states and localities direct law enforcement to inquire about status while policing neighborhoods, whereas other states and localities  explicitly prohibit the practice. Judges presiding over criminal cases, prosecutors, parole and probation officers, jail personnel, and court clerks are also increasingly subject to specific rules and policies regarding whether and how to think about immigration status in processing cases.

Together, these two parallel developments—federal solicitation of local criminal system involvement in immigration removal and criminal system consideration of alienage in the processing of state crimes—represent a sea change in criminal justice. Appreciating how local criminal justice is structured in this era of immigration policing therefore requires examining how system participants actually go about their day-to-day work. How are the programs, priorities, and procedures of the new criminal removal system integrated into the institutional structure of local criminal justice agencies? How do immigration-oriented concerns (such as deportation and migration control) interact at the local level with criminal justice-oriented concerns (such as criminal punishment and crime control)?

In examining the criminal-immigration enforcement nexus, this Article explores the criminal justice systems in three large urban centers: Los Angeles County, California; Harris County, Texas; and Maricopa County, Arizona. I chose to study these three counties because each ranks among the top in the nation on three separate indices of criminal alien enforcement: (1) number of arrests of noncitizens by local police and sheriffs; (2) size of criminal alien population housed in local jails; and (3) volume of fingerprint matches found through the federal government’s new jail-based immigration screening program known as Secure Communities. This steady flow of noncitizens is perhaps not surprising given that these southwestern urban counties are among the most populous in the nation and manage massive criminal caseloads. Each county is also located close to the Mexican border and has a significant noncitizen population. The geography and demographics of these three jurisdictions thus afford them significant experience with the criminal processing of noncitizens.

To document local practices, I rely on eighty-four interviews I conducted with stakeholders in the three counties—prosecutors, public defenders, private attorneys, judges, pretrial services officers, probation officers, and jail personnel. I also draw on other relevant data, including local laws and procedures, criminal court documents and forms, criminal and immigration enforcement statistics, and prosecution policies and training materials. Many of these materials were obtained through the Freedom of Information Act and state public records acts.

My research on these three counties reveals two important findings. The first finding is that criminal law’s integration with immigration enforcement has a far more powerful impact on local criminal process than previously understood. Across all three counties, criminal law officials are keenly aware of both the immigration status of defendants and the practical effects of the federal government’s reliance on convictions in making immigration enforcement decisions. Federal immigration agents are a continuous presence in the local law enforcement system: They are often physically present in local jails, impede release on criminal bail, train prosecutors on how to secure plea agreements that guarantee removal, and sometimes deport noncitizen defendants prior to their criminal trials. Deportation also poses unique challenges for plea bargaining and sentencing because noncitizens are often deported before they are able to complete probation, community service, or other similar requirements imposed by the criminal court.

My second finding is that, despite these consistently deep connections between federal and local officials across all three counties, each county has navigated this criminal-immigration integration in a strikingly different way. At the county level, I find that criminal justice for noncitizens is influenced by two somewhat overlapping sets of discretionary decisions. One set includes local practices that weigh alienage status at different points in the criminal process (such as enhancing a criminal sentence if a defendant is undocumented). The other set of discretionary decisions includes criminal policies and procedures adopted in response to federal immigration enforcement efforts (such as reporting arrestees to immigration authorities or fashioning a plea agreement to avoid deportation). Significantly, within each county, I find that the various criminal system participants (including prosecutors, defense attorneys, judges, and probation officers) have developed a shared understanding of the local criminal system’s role in both sets of discretionary decisions.

Drawing on my research, I provide a framework for conceptualizing the varied approaches of these three influential counties. As I describe, Los Angeles has adopted an alienage neutral model that seeks to shield the criminal process from consideration of immigration status and the disproportionate effects of immigration enforcement on criminal bargaining and sentencing outcomes. Harris County has implemented an illegal alien punishment model in which judges and prosecutors allocate harsher criminal system punishments for those who commit crimes while in violation of this country’s immigration laws. Finally, Maricopa County has created an immigration enforcement model in which local law enforcement, prosecutors, judges, and probation officers attempt to discern immigration status at every stage in the criminal process and bring all potentially deportable noncitizens to the attention of federal immigration officials.

In each jurisdiction, federal immigration enforcement and local criminal practice form a coherent, interlocking system that advances distinct conceptions of noncitizen criminal justice. Although, as I explain, there can be some divergence between what local actors say and what they do in a particular case, at the level of criminal justice policy and articulated practice, each county has developed a unique understanding of how immigration status relates to criminal punishment and the appropriate role of local law enforcement in attaining immigration enforcement goals. As a result, each of the three models affects different categories of noncitizens at different points in the criminal process.

These findings have significant implications for the design of both local criminal justice systems and federal immigration enforcement. For the criminal justice system, the three counties teach us that the treatment of noncitizens incorporates different local understandings of how to achieve equality in criminal sanctioning across alienage lines and eliminate the perceived impact of immigration on crime control. Disentangling these two issues makes it possible to entertain with more clarity what policies and practices are at stake in crafting a local approach to noncitizen justice. For the federal immigration system, the distinct county models challenge the assumption of national uniformity that drives much of federal immigration policy. If uniformity is indeed the desired federal approach, this research demonstrates that more careful thought must be applied to both the exercise of discretion in making deportation decisions and the federal supervision of local criminal justice practices. In short, in this era of unprecedented immigration enforcement against suspected criminals, this Article’s on-the-ground inquiry recalibrates our understanding of both criminal justice and immigration federalism.

Diminishing Retaliation Liability

Alex B. Long, Sandra F. Sperino

Over the past decade, courts have often construed statutory provisions relating to workplace retaliation liberally, interpreting them to provide protections for employees who complained about discrimination against themselves or others. However, a recent decision by the Fifth Circuit Court of Appeals demonstrates that courts may begin to scale back the gains made by employees in retaliation cases by applying agency principles to limit employer liability for retaliation.

In Hernandez v. Yellow Transportation, Inc., John Ketterer, a White dockworker at Yellow Transportation’s Dallas terminal, alleged that the Dallas terminal was, to put it mildly, an unpleasant place to work. Unhappy about what he viewed as racial discrimination directed at his coworkers, Ketterer picketed the company. As a result, Ketterer claimed, other employees subjected him to retaliatory harassment. This retaliation included “name-calling, physical intimidation, false accusations, vandalization of his belongings, verbal threats, and observing violence and illegal behavior.”

Comment on Market Conditions and Contract Design: Variations in Debt Contracting

Alan Schwartz

In Response to: Market Conditions and Contract Design: Variations in Debt Contracting

This Comment attempts to explain two stylized facts: As the market interest rate rises, lenders demand either (a) more collateral, or (b) tighter covenants. In their Article, Conditions and Contract Design: Variations in Debt Covenants and Collateral, Choi and Triantis (“C&T”) use two models in their explanation of these facts: an adverse selection model and a moral hazard model. The adverse selection model formally analyzes only collateral contracts, but the authors claim that both the collateral contract and the covenant contract mitigate adverse selection. The moral hazard model also considers only collateral contracts; the claim here is that these best mitigate moral hazard.

The Article claims to derive three principal results:

(A) The likelihood that parties write collateral contracts is increasing in the market interest rate (both models). When the problem is adverse selection, this result applies to covenants as well.

(B) Good (i.e., less risky) types are more likely to offer collateral than bad types (both models);

(C) The difference in the contracts of good and bad types widens as the market interest rate increases (both models).

This Comment argues that under symmetric information, results (A) and (C) continue to hold but result (B) reverses: Bad types offer more collateral than good types. Symmetric information is the more plausible assumption in the Article’s adverse selection setup. I make three other points: (i) C&T’s moral hazard model assumes that borrowers are ex ante identical: Every borrower is equally likely to pursue a later project that disadvantages the initial lender. This setup cannot explain why some partie —lenders and borrowers—use covenants while other, apparently similar parties, use security; (ii) Letting borrowers differ ex ante may explain when parties prefer one or the other risk reduction device. In this framework, the better argument continues to be that bad types offer more collateral than good types; (iii) Turning to empirics, some data rejects C&T’s result (B): Bad types appear in fact to offer more collateral than good types. Because this data is not current, it cannot settle the issue. On the other hand, and to summarize, the data and the analysis raise the question whether C&T are using the right models for the problem.

Copying and Context: Tying as a Solution to the Lack of Intellectual Property Protection of Contract Terms

Lisa Bernstein

In Response to: Contracts as Technology

In his Article Contracts as Technology Kevin Davis makes an analogy between technological innovation and contractual innovation and suggests that contractual innovation, like technological innovation, can both add value to exchange and promote trade. Davis presents a theory of the uses and sources of contractual innovation that has at its core the idea that “[t]he principal determinant of the value of adopting a contract is the value of the changes in behavior it induces.” The Article then draws on this theory and the analogy to technological innovation to explore the incentives of law firms, businesspeople, trade associations, and a variety of nonprofit institutions to engage in contractual innovation, even though there is no equivalent of copyright, trademark, or patent protection for contractual language. It concludes that given the lack of intellectual property protection for contractual language, potential contractual innovators of all types are likely to make socially sub-optimal investments in contractual innovation.

This Comment adds to Davis’s analysis by describing the ways that standard-form contracts and trading rules are produced and used in trade associations. It suggests that many trade associations tie these contracts to other products and services they offer in ways that create contractual value for their members that is not fully available to those who might simply decide to adopt, or more aptly, copy the language of their contractual forms. As a result, association members endorse contract and trade rules revision efforts funded by membership dues even though these contracts can be copied and these rules incorporated by reference into transactions between nonmembers who in effect free ride on the associations’ costly drafting efforts. More broadly, exploring contractual innovation in the trade association context suggests that once it is recognized that the value of a contract depends as much on the institutional and interpersonal context in which it is adopted, governed, performed, and enforced as it does on the specific words used, the lack of intellectual property protection for contractual language might be far less of a barrier to contractual innovation generally than Davis suggests.

NAMUDNO’s Non-Existent Principle of State Equality

Zachary S. Price

The fifty states are unequal in many respects—population (and thus representation in the House of Representatives), wealth, resources, climate, economic foundations, and industrial and technological development, to name a few. Federal legislation, therefore, often affects states unequally, and at times even singles out particular states for special treatment. Is such legislation suspect? In dicta in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), the Supreme Court cryptically suggested that it might be. This term, in Shelby County v. Holder, the Court is poised to revisit the issue presented in NAMUDNO: whether section 5 of the Voting Rights Act (VRA), which imposes special requirements on certain states and jurisdictions with histories of discrimination, is constitutional. In the process, the Court could choose to give the NAMUDNO dicta some bite.

The Court should not do so. The suggestion that federal legislation must treat states equally is a chimera, without support in constitutional text, history, or precedent. It is particularly unfounded with respect to legislation, like section 5 of the VRA, that is based on Congress’s authority under the Fourteenth and Fifteenth Amendments to eradicate discriminatory denials of the right to vote. A constitutional requirement that legislation cannot treat states differently would call into question many typical legislative acts. The idea should be put to rest before it causes mischief.

The Private Life of Public Rights: State Constitutions and the Common Law

Helen Hershkoff

In this lecture, I make the positive point that some state courts do indeed indirectly enforce state constitutional norms through the common law when resolving disputes that involve only private actors, and that this practice is analytically distinct from mere policymaking. The practice allows public law to influence the content of private law in ways that may not immediately be obvious to see. I illustrate the practice, and I point to some of the common law pathways that state courts use in this process. I then make the normative argument, and try to convince you, that more state courts should embrace this practice. I close by suggesting some of the implications this practice holds for social improvement. Thinking back to my earlier career as a public interest lawyer, I was motivated by the belief that law, and especially constitutional law, can improve everyday life. I still hold that view, but I have come to see that the mechanisms of change also must include the slow, molecular motions of the common law.