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Warren’s Plan to Break up Big Tech: Coordination Rights as a Public Resource

By Michael Svedman*

 

In her recent proposal to break up Amazon, Google, and Facebook, Elizabeth Warren sounds the familiar antitrust alarm. Weak antitrust enforcement has allowed big tech companies to achieve Gilded Age levels of market dominance. They use mergers and proprietary marketplaces to acquire or exclude their competitors. The effect is to squeeze out small and medium-sized businesses, limit competition, and stifle innovation. Even if these firms provide reliable services at a reasonable price, we should still worry about the consequences of such monopolies and the potential harm their distortions cause to consumers. For example, big tech companies can afford to be lazy about protecting our privacy because no viable competitor threatens to capture some of their market share by offering a comparable suite of services while providing users with more robust data privacy decision rights.

All of that makes sense and follows the predictable contours of antitrust rationale. The basic claim is that “[t]oday’s big tech companies have too much power . . . over our economy.” Such a massive agglomeration of wealth and power is unfair or (depending on your preferred normative flavor) inefficient. But Warren also signals a deeper set of concerns — that big tech companies have too much power over “our society, and our democracy.” To be sure, social and political power implicate efficiency, competition, and innovation. What is interesting here, however, is the invitation to think of antitrust as a mechanism for allocating coordination rights as well as a tool to promote competition. In assessing Warren’s proposal, the question is not (only): will breaking up Amazon, Google, and Facebook promote competition and innovation, i.e. fairness/efficiency? The more fundamental question is: how do we want to allocate coordination rights across platform utilities in the tech sector?

In a recent article analyzing the intellectual posture of what she calls “the firm exception” in antitrust law, Professor Sanjukta Paul articulates the assumptions lodged in pro-competition arguments like the one I outlined above. Paul’s key insight is that the prevailing interpretation of antitrust law privileges intra-firm coordination while limiting opportunities to expand horizontal coordination beyond firm boundaries:

“It is conventionally understood that the purpose of antitrust law is to promote competition. Much more fundamentally, however, antitrust law allocates coordination rights. In particular, our current antitrust framework authorizes large, powerful firms as the primary mechanisms of economic and market coordination. Still, the notion that antitrust exists to promote competition has been critical for maintaining its particular allocation of coordination rights. The pro-competition norm has been deployed to purge other normative benchmarks from antitrust analysis, which would if revived pose challenges to the status quo allocation. And of course, the pro-competition norm has served to undermine other coordination mechanisms—such as workers’ organizations, “cartels,” and the public coordination of markets.”

For Paul, recognizing that antitrust always already allocates coordination rights is the first step in arguing that we can and should consciously deploy antitrust in our efforts to reallocate coordination rights. Once we think of coordination rights as a public resource, it makes sense to say that they ought to be allocated in the public interest.

Warren’s proposal may not contemplate an expansion of alternative arrangements for allocating coordination rights. After all, she wants to break up big tech companies to ensure that individual firms would be prohibited from owning both platform utilities and participants on that platform. The new, smaller firms would still enjoy the firm exception rights Paul identifies, and presumably competition among them would promote innovation and benefit consumers.

Yet the proposal involves a dramatic reallocation of coordination rights in the service of competition and of our social and democratic interests as well. Behind the economic case for breaking up big tech companies, we should recognize anxieties about how these actors exert outsized influence over our social and political lives. If we read between the lines, Warren seems to be saying something like the following: when big tech companies can bully cities and states into giving them massive tax concessions, when they can act, in Mark Zuckerberg’s words, “more like a government than a traditional company,” then questions of democratic accountability become pressing. In other words, we should worry that big tech companies can (and do) leverage economic domination (monopoly) into social and political domination (oligarchy).

So of course, using antitrust to break up big tech companies should promote competition and innovation such that the benefits of lower prices and better services accrue to consumers. More fundamentally, reallocating coordination rights across platform utilities gives us an opportunity to submit their distribution to the scrutiny of public policy. Our current arrangements, which allow big tech companies to control both platform utilities and the participants on those platforms, might be bad for fairness and efficiency in our markets. And they might be bad for democratic accountability in our polity. We should think of Warren’s proposal as voicing a public claim to alter those arrangements to ensure that they promote the public’s interests, broadly construed and democratically determined.

 

* Michael Svedman is a 2L at Harvard Law School and the Executive Article Editor of the Harvard Law & Policy Review.

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Revictimized: How the Military Justice System Fails Victims of Child Pornography Offenses

By Michael Webert*

 

Introduction

In the wake of recent decisions by the Court of Appeals for the Armed Forces (CAAF), the military justice system’s highest appellate court, victims of child pornography offenses now receive substantially different rights and treatment in military courts than in federal civilian courts. Two key issues in child pornography cases are now handled much differently, depending on the forum: notification and participation. In the civilian system, child pornography victims may elect not to receive individualized notifications every time another offender is charged with viewing illicit content depicting the victim, avoiding a potentially traumatic stream of reminders that they are still being exploited. Military law now requires just that. Moreover, a victim in the civilian system may elect to be heard by writing a statement describing the impact of the child pornography offense on them, which can then be submitted during sentencing of offenders who viewed their images, but without requiring them to learn of and specifically address every single offender who views the depictions in question. The military justice system now requires them to do exactly that if they wish to be heard. Because the CAAF ruled that this system is required by statute, Congress must act to relieve this burden on the victims of child pornography and bring the military justice system into alignment with its civilian counterpart.

I. The Need for Victim Impact Allocution, Elective Victim Notification, and Nonspecific Allocution

A. General Principles

A wide variety of arguments have been put forward to support the practice of victim allocution. In enacting the Crime Victims’ Rights Act (CVRA) and Article 6b of the Uniform Code of Military Justice (UCMJ), Congress concluded that at least some, if not most or all, of these arguments justified a statutory right of victim participation.

Some argue that a right to victim allocution elevates the role of the victim in the criminal justice to its appropriate standing. The right makes victims “full participants in the criminal justice system,” an end that multiple courts have cited as an underlying goal of the CVRA’s drafters. Doing otherwise, and omitting the victim’s narrative from the courtroom is, in one scholar’s view, “to undermine public perceptions of the justice system’s legitimacy.” Moreover, such allocution provides useful information to sentencing authorities that might not otherwise be available. It also contributes to the “moral education” component of the criminal justice system by impressing the gravity of the crime on the offender and the community.

Additionally, allocution allows victims the opportunity to recover from the impact of the offense. The allocution can restore the dignity of the victim, making them an empowered participant in the process rather than a helpless bystander. Indeed, one scholar’s review of the research concluded that delivering statements provides victims empirically-demonstrated “therapeutic benefits.” Exclusion from the process, by contrast, risks “secondary harm” from the offense by making victims feel as though “society doesn’t value them enough to take their views and concerns into account.”

B. Considerations Unique to Child Pornography Cases

A victim of child pornography—just as a victim of any other offense—has a statutory right to be reasonably heard, and, if so heard, stands to be a full participant in criminal justice proceedings, provide useful information to the sentencer, educate both the offender and the community, benefit from the restorative and therapeutic effects of allocution, and avoid the secondary harm of exclusion and devaluation.

These victims, however, also face unique challenges that are not fully contemplated by procedures conceived around the more prototypical victimhood from a one-off incident between a single offender or group of offenders and a single victim or group of victims. Victims of child pornography are “polyvictims”; in addition to the original abuse depicted in the pornographic images, they are repeatedly victimized by the recurring viewing and distribution of the images by subsequent offenders, as well as the knowledge that the images exist permanently and are in circulation. This aspect of victimization in child pornography cases has been recognized by both Congress and the Supreme Court.

The general approach to victim notification, however, can be devastating for victims of child pornography. Rather than healing, repeatedly reminding victims of the ongoing exploitation of their images can potentially traumatize them further. One such victim has described finding at least one notification letter on most of her trips to the mailbox, resulting in a home filled with “boxes full of victim notifications.” These are “constant reminders of the horrors of [her] childhood.”

II. The Divergence Between Military and Civilian Treatment of Child Pornography Victims

The nature of child pornography crimes thus places victims on the horns of a dilemma: to exercise their allocution rights in the same manner as other victims and receive the corresponding benefits, they must also accept the destabilizing impact of receiving personal notice of every offender who revictimizes them. Of course, even assuming a victim enthusiastically desired to exercise their rights, it may be logistically impossible to do so—the images of a single victim could potentially lead to “hundreds or thousands of sentencings each year.”

To resolve these problems of notification and participation, the Justice Department has created policies to allow victims to elect not to receive individualized notifications, but nonetheless draft a written statement to be submitted by the Government to a sentencing court when an individual is convicted of an offense involving that victim’s images. The FBI’s Child Pornography Victim Assistance (CPVA) program and the DOJ Victim Notification System allow victims to opt in or out of notifications at any time. CPVA also permits victims “a choice to provide a Victim Impact Statement (VIS) that may be used in federal, state, and/or local sentencings or parole proceedings where the defendant’s offenses involved images of the victimization.” The program brochure emphasizes that victims may do this regardless of whether they choose to be notified of such proceedings.

This process has been approved by the courts. For obvious reasons, no defendant has challenged the DOJ’s notification policy. However, the federal circuits that have addressed the issue are unanimous that written impact statements are perfectly acceptable allocution. Moreover, those statements need not be written with respect to the particular offender in question. Nor do the statements need to specifically identify the victim.

By contrast, the CAAF recently declared in a child pornography case that Article 6b requires “that victims be contacted.” At the time of that ruling, the military had no formalized system or instruction for handling the unique victim notification challenges of child pornography cases. None of the military manuals governing the conduct of trial counsel (prosecutors) and victim-witness assistance programs address either waiver of notification or unique considerations in child pornography cases. Neither does Defense Department Form 2701, which provides “initial information for victims or witnesses of crimes.”

The more substantial deviation from federal practice, however, is the requirement that the victim participate personally in the proceedings. Article 6b differs from the CVRA in one substantive way: the latter explicitly provides that the Government may assert victim’s rights (which include the right to be heard). Article 6b of the UCMJ does not provide for such a practice, but neither does the law expressly forbid it. The Rules for Courts-Martial (RCM) promulgated by the president, however, limit the right of victim allocution to the victim, their counsel, or their designee (appointed by the judge if the victim is under 18 years of age, incompetent, incapacitated, or deceased).

In United States v. Barker, the CAAF rejected the Government’s attempt to introduce a victim impact statement prepared by the victims portrayed in the child pornography at issue because they were not introduced by the victim or her counsel or designee. As the Court put it:

“All of the procedures in R.C.M. 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel. Moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact ‘directly relating to or arising from the offense of which the accused has been found guilty.’”

More recently, in United States v. Hamilton, the CAAF found an abuse of discretion on the part of a military judge who admitted victim impact statements authenticated at trial by law enforcement “absent any indication either that the victims intended their statements to be used in this particular prosecution or that a ‘designee’ was appropriate under the rule.” In addition to the concerns expressed in Barker, the Court determined that unsworn statements from unidentified victims unaware of the specific case are “virtually irrebuttable” in violation of the RCM provision allowing the defense to rebut statements of fact contained in victim allocution. Although the President’s rule arguably compelled this conclusion on its own, the Court held that this conclusion was also compelled by the statute.

Thus, following Barker and Hamilton, when a military member is charged with a child pornography offense, the appropriate service is obliged to seek out and notify the victim. The victim, meanwhile, must participate directly in that specific service member’s sentencing, or not at all. If two, ten, or two hundred service members are sentenced for offenses involving images of their victimization, the victim must address each case individually or forego their right to allocution. At the same time, if the victim so desires, they may exercise their allocution rights in any number of federal court proceedings without the need for notice of each individual exploitative use of their images.

III. Proposed Solution

So long as lawmakers have determined that victims should be given a right to allocution, victims of child pornography should not be unduly burdened in exercising that right due solely on whether or not the individual that exploits them wears a uniform.

Because the CAAF’s decisions are rooted in statutory interpretation, the onus to act here falls on Congress. Congress could amend Article 6b either by expressly providing for child pornography cases in a standalone provision or by adding to the current statutory language.

To accomplish the former, Congress could simply add “rule[s] of construction,” as already provided for in Article 6b(d). Article 6b(d) could be amended such that “nothing in the [article] shall be construed” to (a) require notice be provided to a victim who communicated a desire not to receive such notice to law enforcement, or (b) require child pornography victims to participate personally in a specific proceeding in order to vindicate their right to be reasonably heard.

To accomplish the latter, the notice provision, Article 6b(a)(2), could be amended to clarify that a victim may elect to waive notification, and the allocution provision, Article 6b(a)(4) could be amended to provide that a right to be reasonably heard includes the right of a child pornography victim to submit a generalized victim impact statement. Congress could also consider adding a provision comparable to that in the CVRA which allows the Government to assert the victim’s right to be heard.

Conclusion

The current disparity in the federal government’s treatment of child pornography victims serves no useful purpose. It subjects victims to potentially traumatic and unwanted reminders of their continuing exploitation while depriving them of the allocution benefits afforded to victims of other crimes. Whether victims are subjected to this system depends solely on the military status of the accused. Congress must act swiftly to ensure that the military justice system treats child pornography victims with the same care and respect as its civilian counterpart.

 

*JD, Georgetown University Law Center, 2018, BA, University of Utah, 2010. Mr. Webert is a civilian law clerk at the United States Court of Appeals for the Armed Forces (CAAF). The opinions expressed herein are solely those of the author and are not necessarily representative of those of the CAAF or the United States Department of Defense.

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SCOTUS Gambles with Pardon Power

By Eric Allen Kauk*

 

On November 20, 2015, around 11:00 p.m. Terance Gamble was pulled over in Mobile, Alabama by a local police officer for having a busted light on his car.  As the officer walked up to the car, he smelled marijuana, so he removed Mr. Gamble from the car while he searched the vehicle.  The officer found a small amount of marijuana and a firearm.  Marijuana is still illegal in Alabama, but the gun was the bigger issue for Mr. Gamble.  In addition to numerous other legal issues, Mr. Gamble had been convicted of robbery 8 years earlier.  So, having a gun in his car was conduct that violated both Alabama state law and the federal law that both forbid convicted felons from possessing a firearm.

In Gamble v. United States, the Supreme Court is deciding whether a person can be prosecuted under both federal law and state law for the same specific conduct.  This is not a new question.  Long-standing precedent in case after case says “yes.”

The Double Jeopardy Clause of the Fifth Amendment states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”  However, for about 150 years, courts have regularly and repeatedly reinforced that a state government and the federal government can both prosecute an individual for singular conduct that that violates both state law and federal law.  (Abbate v. United States, Heath v. Alabama, Puerto Rico v. Sanchez Valle, United States v. Dixon)

The rationale underlying these decisions is that the state and federal governments are separate sovereign entities, each deriving their authority from different groups of governed people.  An individual state derives its sovereign authority from the citizens of that state, while the federal government’s power is granted by the citizens of the entire United States.  Therefore, a single action or instance of conduct can be two “offence[s]” against the laws of separate sovereign entities: one offence against a state law and one offence against federal law.  Since there are two offences, a person that is prosecuted by both state and federal authorities is not being prosecuted for the same “offence” and is thus not being put in “double-jeopardy.”

Although the “separate sovereigns” doctrine seems like settled law, the nine Supreme Court Justices took their time to consider Gamble’s case at 11 consecutive conferences before finally agreeing to hear the case.  With so much precedent and such a long history, why did SCOTUS agree to consider Gamble’s case now?  The numerous cases asking this same question is certainly an important reason, but the current political climate is likely not a coincidence.

Political pundits on the left and the right have postulated that if SCOTUS overturns the separate sovereigns doctrine at issue in Gamble, there could be high-profile effects.  For example, Paul Manafort, Roger Stone, and potentially President Trump could be prosecuted at the federal level, and then pardoned by the sitting President, which would protect them from being prosecuted at the state level.

While this is certainly a concern, a more damaging issue must be considered: state governors abusing the power of the pardon.

If SCOTUS overturns the separate sovereigns doctrine, a state could prosecute an individual under state law and that state’s governor could pardon the individual—which would (under a conduct-centric interpretation of double jeopardy protections) then bar any subsequent federal prosecution.  It’s also important to consider that the governors of most states enjoy absolute and unquestioned authority to grant pardons.  With no limitations or oversight, such a massive expansion of state governors’ power to pardon could lead to unintended outcomes across the country.

This issue is not about Trump.  Trump has granted only 7 presidential pardons out of 869 applications in the first 25 months of his presidency.  This is a historically low rate of .8%, compared to Obama’s 212 pardons out of 3,395 applications (a rate of 6.24%). But, If SCOTUS overturns the separate sovereigns doctrine, we could see a “race-to-the courthouse” mentality across the country where a governor’s political allies can seek favor from a state pardon process that is already shrouded in mystery and rife with inconsistencies.  By overturning the separate sovereigns doctrine, the Supreme Court could be granting completely unchecked pardon authority to state governors across the country.

 

*Eric Allen Kauk is a fully restored individual in his third year at Stetson University College of Law.  He can be reached at ekauk@law.stetson.edu.

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The Harvard Law and Policy Review is excited to announce the release of Volume 10.2! Volume 10.2 explores cutting edge policymaking at the state level—examining meaningful changes, setbacks, and lessons learned—as well as the legal questions surrounding state innovation. It also includes articles by Catherine MacKinnon, Brishen Rogers and others on important, topical legal and policy debates.

 

Symposium: State of the States: Laboratories of Democracy

 

Foreword: Federalism Bound

Joel Rogers

Joel Rogers argues that we are in a time of both “good federalism,” where local actors experiment and share useful improvements to their communities, and “bad federalism,” where local elites use the instruments of federalism to further oppressive and destructive reforms. Current politics, he warns, risk drowning the good federalism with the bad. Rogers introduces and draws on the articles in this symposium to make a case for good federalism.

 

The State Role in K–12 Education: From Issuing Mandates to Experimentation

Betheny Gross and Paul T. Hill

In December 2015, Congress passed the Every Student Succeeds Act, rolling back many components of No Child Left Behind and giving states more autonomy over public education. Betheny Gross and Paul T. Hill situate this development within the arc of public education policy and discuss how greater state autonomy can and should illustrate democratic experimentalism. To ensure that states capitalize on this opportunity and mitigate the risks of deregulation, Gross and Hill urge continued transparency and state focus on student achievement.

 

A New State Ice Age for Gun Policy

Allen Rostron

In the face of federal inaction on measures to reduce gun violence during President Obama’s administration, Allen Rostron describes reforms taken by “blue” states to tighten gun regulations and reforms by “red” states making it much easier to acquire and carry weapons. Rostron finds some virtue in state experimentation, but discusses the limits of federalism for gun policy stemming from the spillover effects of one state’s laws on others.

 

A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels

Brian M. Murray

Every day, the FBI adds over ten thousand names to its eighty million-strong criminal database. These records can be generated from a single arrest and carry lifelong consequences. Brian M. Murray evaluates federal and state-level expungement initiatives that offer the promise of a new beginning. After examining several case studies, Murray argues that states should follow Indiana’s example of a broad, efficient, and effective expungement statute to mitigate the scarlet letter of a criminal record.

 

State Innovation on Climate Change: Reducing Emissions from Key Sectors While Preparing for a “New Normal”

Vicki Arroyo, Kathryn A. Zyla, Gabe Pacyniak, and Melissa Deas

Vicki Arroyo and co-authors from the Georgetown Climate Center examine state-level reforms to reduce greenhouse gas emissions from the electricity and transportation sectors and to prepare for the impacts of climate change. The article argues that while state and local reforms are insufficient by themselves to address the global challenge of climate change, current state experimentation produces useful models for other states, the federal government, and other countries to follow.

 

General Essays

 

Rape Redefined

Catharine A. MacKinnon

Promoting sex equality is Catharine A. MacKinnon’s life’s work. This piece presents her culminating analysis of rape law based on gender equality principles. In dialogue with the on-going revisions of the Model Penal Code’s sexual assault provisions and building on international legal developments, MacKinnon demonstrates that the concept and doctrine of “consent” in rape law ignores the reality of the inequality of the sexes as context for, and potential content in, sexual interactions, making impunity for sexual assault commonplace. MacKinnon proposes a statutory redefinition of rape to make rape exceptional, then extinct.

 

Employment Rights in the Platform Economy: Getting Back to Basics

Brishen Rogers

Are Uber drivers employees or independent contractors? Brishen Rogers finds that Uber drivers, and similar workers in the platform economy, do not fall neatly into either employment category under existing tests. Nevertheless, Rogers argues that the anti-domination principle underlying existing employment tests strongly indicates that the drivers are employees and that proposals to limit platform economy firms’ liability are premature at best and misguided at worst.

 

Residual Value Capture in Subsidized Housing

Brandon M. Weiss

For over twenty-five years, the Low Income Housing Tax Credit has been the most significant federal housing program, representing $8 billion in annual investment to develop low income housing. However, starting in 2020 key program restrictions on rent will start to expire and a massive amount of affordable housing and public value will be lost. Brandon M. Weiss explains how the tax credit works and advocates a three-sector approach between the government, private, and nonprofit sectors to maximize public value in low income housing development.

 

Student Note

 

“No Imbecile at All”: How California Won the Autism Insurance Reform Battle, and Why Its Model Should be Replicated in Other States

Ariana Cernius

Autism is the fastest growing developmental disability in the United States, affecting one in sixty-eight children. Yet there is a patchwork of state-level insurance laws regarding autism treatment, making some states much better for families affected by autism than others. Ariana Cernius compares the laws and advocacy strategies that led to insurance reform in California and North Carolina to provide a roadmap for advocates in other states.

https://harvardlpr.com/2016/07/06/2375/

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The Goals of Good Process: Lessons from Mass Claims

By Benjamin Rajotte and Vikram J. Kapoor*

Imagine that you were hurt by something beyond your control. Maybe a faulty product, or a commercial plane crash. Something big and painful to us and many other people. Amidst the emotional turmoil, we might be fairly motivated to recover for our losses.

But what if we could not recover anything under the law…what then? Or what if we knew that a lawsuit would take a long time and cost a great deal, with plenty of uncertainty? And though we may appear formally before a decision-maker and make statements on the record, would we ever really feel heard and understood? The pain would certainly linger.

Dispute management systems (also known as claims facilities) have been on the rise in recent years. You may have heard that funds were established for victims of September 11th and their families, [footnote] 1. September 11th Victim Compensation Fund, at www.vcf.gov (last visited June 1, 2016). [/footnote] as well as for those affected by the British Petroleum (BP) oil spill. [footnote] 2. Gulf Coast Claims Facility (GCCF), at www.gulfcoastclaimsfacility.com (last visited June 1, 2016); Deepwater Horizon Claims Center, at www.deepwaterhorizoneconomicsettlement.com (last visited June 1, 2016). [/footnote] Claims facilities were also created to address faulty automobile ignition switches, [footnote] 3. See Mike Spector, GM Ignition-Switch Fund Offers $595 Million to Victims, Wall St. J. (Dec. 10, 2015), at www.wsj.com/articles/gm-ignition-switch-fund-offers-595-million-to-victims-1449755042. [/footnote] and a number of other conditions that give rise to “mass claims.” [footnote] 4. See, e.g., Int’l Inst. for Conflict Prevention and Resolution, Master Guide to Mass Claims Resolution Facilities (2011) (describing examples of mass claims resolution facilities with guidance and best practices); Am. Arb. Ass’n, Mass Claims ADR Programs and Federal ADR Programs, at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004209 (last visited June 1, 2016) (describing additional examples). [/footnote]

These voluntary systems offer the possibility of a process that is speedier and less burdensome on participants than formal litigation. In one rare example, the Special Master of the September 11th Victim Compensation Fund, Kenneth Feinberg, even went to a potential claimant’s home and pleaded with her to take the millions of dollars that were owed to her. [footnote] 5. Ken Feinberg, in addressing the Mid-Atlantic Chapter of the American Bar Association Section of Dispute Resolution (2015). [/footnote] Dispute management systems clearly bring unique value.

This all sounds great in theory, but in practice it is an art and a science applied to unique circumstances with significant variability in facts, standards, institutions, and mandates. The truth is that “good process” requires resources – time, money, personnel, infrastructure, and the like – as well as expertise, institutional will, and innovation. Even after examining comparative models for lessons learned, some adjustments are still likely to be needed as you go along. With scale and complexity, there will be expectations from diverse stakeholders with different interests involved from the beginning.  This all continues until the process is complete.

No one said that this kind of balancing act would be easy. The public burdens of due process, by analogy, are well recognized in administrative law jurisprudence. The Supreme Court’s decision in Mathews v. Eldridge [footnote] 6. 424 U.S. 319 (1976). [/footnote] is a paradigmatic example through its “balancing test” to measure “what process is due,” and when it is due (pre- or post-deprivation), in informal agency adjudications. Whether instituting due process in agency adjudications, or designing mass claims facilities, policymakers and stakeholders have often struggled with these questions.

Process has the potential to be a field-leveler, especially for people who have undergone significant and even incalculable loss or have otherwise felt marginalized by power asymmetries or circumstances out of their control.

In a mass claims facility designed for many people whose losses cannot necessarily be repaired through any outcome, process is all the more important. It becomes rule of law, applied in scale to communities and other diverse segments of society.

System design can either advance or signal tensions with some features of the Comprehensive Law Movement. This includes how each person navigates through the process and the demands expected from them along the way, how much individualized process each person is afforded, and the manner in which their voices are heard.

Susan Daicoff’s influential scholarship on this subject details a “comprehensive, integrated, humanistic, interdisciplinary, restorative, and often therapeutic approach to law and lawyering.” [footnote] 7. Susan Daicoff, Law as a Healing Profession: The “Comprehensive Law Movement,” 6 Pepp. Disp. Resol. L.J. 1, 1 (2006). [/footnote] As Daicoff outlines, the Comprehensive Law Movement revolves around two central themes:

First, [it] explicitly recognizes and values the law’s potential as an agent of positive interpersonal and individual change and seeks to bring about a positive result (such as healing, wholeness, harmony, or optimal human functioning) as part of the resolution of legal matters. Second, [it] integrates and values extralegal concerns – factors beyond strict legal rights and duties – into law and legal practice. These “rights plus” factors include:  needs, resources, goals, morals, values, beliefs, psychological matters, personal wellbeing, human development and growth, interpersonal relations, and community wellbeing.” [footnote] 8. Id. at 1-4. [/footnote]

Lessons from the field of ADR similarly teach us not to reflexively view all disputes as a zero-sum game, but rather to be inquisitive, unpack assumptions, and look deeper – and where practicable, in a more collaborative and multidimensional way – into the nature of the parties’ interests and solutions.

While certain lines need to be drawn, as lawyers we should discover and not lose sight of the client’s ultimate objectives in our roles as diligent agents and advisors. [footnote] 9. See Am. Bar Ass’n, Model R. 2.1 (“In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”). [/footnote]

These approaches are instructive because they highlight the importance for voices to be heard, even if the relief sought cannot be granted under prevailing norms. Providing meaningful space for human interaction and connection is essential in a mass claims setting. As Elizabeth Schneider writes:  “Grief and trauma are always in the background of tort litigation or claims resolution process – they are the ‘silent partners’ in these cases.” [footnote] 10. Elizabeth M. Schneider, Grief, Procedure, and Justice: The September 11th Victim Compensation Fund, 53 DePaul L. Rev. 457, 465 (2003). [/footnote] The pure legal dimensions of the issue can be too difficult to separate from the overall fabric of the ordeal. Most importantly, experience cautions that it may be counterproductive and unnatural even to try.

In addition to having a fair and consistent methodology that appropriately balances standardization with more individually qualitative or subjective considerations in fashioning an outcome, we should aspire to create a process that accounts appropriately for the realities of the human condition. As Nancy Welsh writes, the Supreme Court’s due process jurisprudence including Mathews underscores the importance of system design insofar as it “contribut[es] to achieving reasonably accurate results,” while “[m]ore recent research has shown … that the opportunity for voice has an importance that stands on its own.” [footnote] 11. Nancy A. Welsh, Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories, 54 J. Legal Edu. 49, 53 (2004). Daicoff similarly observes that people “want a voice” and “an opportunity to tell their story.” Daicoff, supra, at 18. [/footnote]

The outcome is unquestionably important because it affects the lives of individuals and families, which may ripple through communities and generations. We do not mean to suggest that these perhaps more “holistic” goals of “good process” should offset or mitigate problems with system design, implementation, or outcomes. Rather, an opportunity to promote healing can be lost unless they are kept in mind.

Even the “best” outcomes may not be recognized or embraced as such, and the trust and credibility that undergird the process may be unnecessarily brought into question, if participants feel disempowered or that they were not given a “fair shake.”  As Welsh writes in terms of procedural justice:

[P]rocedural elements … do more than just make the disputants feel good.  In fact, disputants are more likely to conclude that they have received distributive justice to the extent that they perceive that they have been treated in a procedurally just way….  And, if people perceive that a process was procedurally just, they are more likely to view the social institution that provided the process as legitimate. [footnote] 12. Id. at 52-53 (emphasis in original). The article also describes willingness “to comply with the outcome” as a third benefit of participants feeling that they received fair treatment. Id. at 53 (emphasis in original). [/footnote]

All of this essentially means that, in a mass claims facility, process should be measured by outcomes, but also by goals including the empowerment, catharsis, and dignity and respect that it may promote.

These objectives matter, and they should influence procedural elements – for instance how a decision-maker measures facts and burdens against standards in fashioning an outcome, and overall how participants are treated within the system.  While this is not purely evidentiary or outcome-driven in nature, it is just as essential to the process’s viability.

 

* Benjamin Rajotte and Vikram Kapoor are employees of the Federal Emergency Management Agency (FEMA).  They can be reached at brajotte@yahoo.com and vikramjkapoor@gmail.com. The views expressed here are their own and do not necessarily represent the views of FEMA or the United States government.

 

Image by Andrea Booher – This image is from the FEMA Photo Library., Public Domain, https://commons.wikimedia.org/w/index.php?curid=8067977

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The Highest Pharmaceutical Companies in the Land: The Legal Ramifications of Private Sector Objections to the Death Penalty

By Rose Carmen Goldberg*

“Welcome to Groundhog Day,” as former Justice Scalia once said. The scene is familiar. This month, yet another pharmaceutical company has voiced opposition to use of its drugs in executions. In a public statement, pharmaceutical juggernaut Pfizer announced it will not supply drugs for lethal injections, and will enforce strict distribution restrictions to this end. Yet the scene is also different. Though many pharmaceutical companies have spoken out against the death penalty before, Pfizer’s ban is rightly regarded as a watershed. As the second largest pharmaceutical company in the world, its policy is likely to substantially impact the already dwindling availability of lethal injection drugs. This is legally significant for two interrelated reasons.

First, Pfizer’s move may bring lethal injection protocols closer to constituting a “substantial risk of serious harm.” This is an essential prong of the two-part Baze v. Rees test that courts use to assess the constitutionality of lethal injection methods under the Eighth Amendment’s prohibition against cruel and unusual punishment. In effect, Pfizer has closed off one of the last open market sources of traditional lethal injection drugs. As a result, states are even more likely to resort to alternatives, such as non-FDA approved drugs (“off-label”), which come with increased risks of harm to prisoners. As a general matter, off-label drug use lacks the FDA-supported evidentiary bases and labeling instructions that promote sound administration. In the death penalty context, where medical expert involvement and clinical data are especially lacking, the risks attendant on off-label use reach “substantial” proportions. Simply put, Pfizer’s ban pushes states toward riskier options and brings them that much closer to breaching constitutional protections.

Second, the Baze standard also turns on whether an execution protocol is “objectively intolerable.” Pfizer’s choice is poised to further establish the required sense of intolerableness. That Pfizer, a profit-motivated institution, has found cause to disclaim lethal injection shows that the intolerableness of this practice now runs quite deep. Unlike public sector anti-death penalty activists and religious objectors, Pfizer does not act primarily out of moral obligation or respect for the intrinsic value of human life. Yet even Pfizer has found the death penalty intolerable. Pfizer’s message has thus further expanded the intolerableness of lethal injection across institutional divides.

In a more straightforward sense, Pfizer’s ban will affect the degree of “intolerableness” because this standard depends on frequency of use. The fewer the number of states that use a given method of execution, the less tolerable it is. Many states, attuned to the risks of lethal injection stemming from decreased drug supplies and the lack of FDA-approved drugs in particular, have already instituted moratoriums. Pfizer’s decision portends more. Indeed, in the wake of the Supreme Court’s most recent Baze case, in which the Court found that the degree of intolerableness had not yet reached constitutional dimensions, the state stayed the very execution that the Court had sanctioned. It was unable to access “appropriate” drugs. These indicia of intolerableness are only bound to become more stark, and judicially cognizable.

Baze remains the authoritative doctrine on the constitutionality of methods of execution, as the Court’s decision in Glossip v. Gross confirmed last summer. Glossip added a few controversial twists to the Baze standard that divided the Court, such as an apparent requirement that prisoners identify known available alternatives in order to nullify a given lethal injection protocol. Nevertheless, given the potential significance of Pfizer’s decision under the Baze standard’s core tenets, we are perhaps getting closer to the Supreme Court issuing an opinion of its own of the same ilk as Pfizer’s. Indeed, Pfizer purports to make “its products to enhance and save the lives of the patients [it] serve[s]” and the Supreme Court arguably rules to protect the integrity of human life. Consistent with these values, the Supreme Court now has sturdier ground, and perhaps an obligation, to likewise “strongly object” to lethal injection capital punishment. As Justice Sotomayor once said, to do otherwise is to leave prisoners “exposed to what may well be the chemical equivalent of being burned at the stake.”

 

* Rose Carmen Goldberg holds a J.D. from Yale Law School; an M.P.A from Columbia University; and a B.A. from St. John’s College, Santa Fe, New Mexico.