2021-2022 Advances in Research

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FALL 2021

ADVANCES IN

RESEARCH

inside

coglianese

ossie-owusu

pollman

Unrules

Police Quotas

Private Company Lies


The faculty at the University of Pennsylvania Carey Law School dedicate themselves to producing research and scholarship that illuminates the most pressing issues facing society today. From COVID-19’s effect on various legal spheres to cutting-edge research on achieving racial justice, and more, our professors discover and share pathbreaking insights that push the legal academy forward and reshape real-world policy. Our faculty members are interdisciplinary thinkers who bridge the gap between the law and myriad connected fields by collaborating extensively with scholars from institutions around the country and throughout the world. Their work exemplifies diverse methodologies and perspectives, revealing the wide range of modes of thought and areas of academic inquiry that thrive here at the Law School. In this issue of Advances in Research, we offer a snapshot of some of the most noteworthy research conducted by our faculty over the past year. The featured faculty members include both longstanding experts in their fields and promising scholars at the beginning of their careers. We hope you enjoy this edition. Sincerely, Ted Ruger Dean and Bernard G. Segal Professor of Law


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MAYERI

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DELISLE

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TANI

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ABRAMS

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FISCH

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HOVENKAMP

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MORSE

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D. HOFFMAN

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SIMMONS

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A. HOFFMAN

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OSSEI-OWUSU

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POLLMAN

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KLICK

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BAKER

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COGLIANESE

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ROBERTS

RESEARCH BY

After Suffrage: The Unfinished Business of Feminist Legal Advocacy

China’s Response to COVID-19

Compensation, Commodification, and Disablement: How Law Has Dehumanized Laboring Bodies

COVID and Crime

Defined Contribution Plans and the Challenge of Financial Literacy

Framing the Chicago School of Antitrust Analysis

Internal and External Challenges to Culpability

Leases as Forms

Local Elected Officials’ Receptivity to Refugee Resettlement

Nursing Home Crisis

Police Quotes

Private Company Lies

Sobering Up After the Seventh Inning

Uncertainty > Risk

Unrules

Why Sociology Matters to Race and Biosocial Science


AFTER SUFFRAGE:

THE UNFINISHED BUSINESS OF FEMINIST LEGAL ADVOCACY on research by

S E R E N A M AY E R I Professor of Law and History

“Long before scholars spoke of intersectionality, Murray theorized how women of color shouldered uniquely heavy burdens and provided underappreciated leadership in movements for racial justice and women’s liberation.”

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In her essay “After Suffrage: The Unfinished Business of Feminist Legal Advocacy,” published in the Yale Law Journal Forum, Serena Mayeri provides a nuanced account of post-Nineteenth Amendment feminist organizing through the lens of racial and gender justice advocate Pauli Murray. Mayeri demonstrates that Murray was “a largely unsung architect of second-wave feminism’s legal and constitutional strategy.” Though the women’s suffrage movement, which culminated in the passage of the Nineteenth Amendment, grew out of the anti-slavery movement, the “abolitionist-feminist alliance” fractured during the Reconstruction era. Notably, the Fourteenth Amendment referred to “male” citizens’ right to vote, and the Fifteenth Amendment prohibits race- but not sex-based abridgment of voting rights. In the decades that followed the Nineteenth Amendment’s passage, some white suffragists relied on racist rhetoric, arguing that women’s rights would function as “an antidote to the voting power of black, immigrant, poor, and disabled men” and they “rebuffed African Americans who continued to fight for women’s right to vote.” Murray, born in Durham, North Carolina, in 1910, “resolved to fight the ‘twin inequalities’ of Jim and Jane Crow.” Rejected in 1938 by the University of North Carolina because of race and by Harvard Law School in 1944 because of sex, she earned law degrees from Howard University, Berkeley, and Yale. As a member of President Kennedy’s Commission on the Status of Women, Murray wrote “a founding document of modern feminist constitutionalism,” which Ruth Bader Ginsburg credited with laying the intellectual groundwork for her own Supreme Court constitutional litigation strategy a decade later. While some activist white women “saw racial-justice movements as competitors, even antagonists” in the early 1960s, Murray sought to unite feminism and racial justice by suggesting that advocates organize an “NAACP for women” in pursuit of equal rights under the Fourteenth Amendment. She centered women of color in her successful behind-the-scenes campaign to win passage of an amendment to the 1964 Civil Rights Act to prohibit sex-based employment discrimination, writing another pivotal memo that circulated widely among senators and the Johnson administration. Murray challenged both male civil rights leaders as well as white feminists: she protested the exclusion of Black women speakers from the dais of the 1963 March on Washington for Jobs and Freedom and two years later called for a women’s March on Washington if the newly formed Equal Employment Opportunity Commission (EEOC) failed to enforce Title VII’s sex discrimination prohibition. “Murray’s calls for a coalition between white women and people of color spoke to multiple audiences: civil-rights leaders wary of white feminists’ flirtations with segregationists; white women preoccupied with sex equality at the expense of racial justice; black and working-class women skeptical that women’s interests aligned across race and class,” Mayeri writes. “By identifying intersecting axes of inequality, Murray sought to persuade those who believed their interests to be divergent that they shared a common cause.”


The Voting Rights Act of 1965 represented an enormous win for “universal adult suffrage,” but a decidedly “gendered family political economy that rewarded households headed by a male breadwinner and a female homemaker and caregiver” persisted. The Moynihan Report, released the same year, cemented a mainstream liberal consensus that restoring African American men as heads of households was necessary to protect against a “matriarchal” family structure that allegedly encouraged “illegitimacy,” poverty, and violence. Murray and her allies argued instead for empowering women of all races as equal partners at home and in the public sphere of work and politics. Murray advocated for more inclusive juries across both race and gender lines, arguing that the “State-level de jure exclusion of (all) women and de facto exclusion of black men from juries had long prevented defendants from receiving fair trials and denied equal citizenship to white women and persons of color.” In 1966, Murray, alongside Dorothy Kenyon, succeeded in securing a federal district court declaration that Alabama’s ban on women’s jury service was unconstitutional; that same year, a daughter of a prominent civil rights activist advocating for racial and gender equity in Mississippi jury pools lost her eye to a bullet likely meant for her mother, underscoring both the importance and the danger of the advocacy work. During this time, Murray also worked for the inclusion of “qualified women” in powerful political offices, such as the presidency, Congress, and the Supreme Court. Though the number of women in these roles remained small in the 1960s and 1970s, as the women’s rights movement gained steam, a number of women of color, including Representatives Patsy Takemoto Mink (D-HI) and Shirley Chisholm (D-NY), worked both separately and together to continue to advance legislation for racial and gender justice. They frequently collaborated with Representative Bella Abzug (D-NY), a civil rights lawyer who introduced early legislation for LGBTQ+ rights. Mayeri writes that “[i]ntersectional advocacy also left a lasting mark on employment discrimination law, as women of color frequently pioneered new claims” and theories of discrimination such as sexual harassment, discrimination against unmarried mothers, and pregnancy discrimination, despite initial resistance from courts. Groundbreaking scholars of intersectionality such as Kimberlé Crenshaw and the University of Pennsylvania Carey Law School’s Regina Austin extended these insights in the following decades. To Murray, full citizenship required a “human rights revolution” that transcended the public sphere and touched every aspect of private life. Together with Eleanor Holmes Norton, Murray worked to invert the Moynihan Report’s reasoning, arguing that more equal partnerships between Black couples could function as a model for white families as women shouldered increasing career responsibilities. In the 1970s, Ruth Bader Ginsburg succeeded in using this “vision of egalitarian marriage” in her litigation for sex equality in cases such as Frontiero v. Richardson and Weinberger v. Wiesenfeld. Nonetheless, Mayeri observes, attempts to challenge “the legal supremacy of marriage itself” were “less coordinated, less visible, and ultimately less successful.” For example, though activists fought discrimination based on “illegitimate” birth status, the cases that succeeded did little to further women’s liberation or racial and economic justice aims. “When plaintiffs in family-status discrimination cases did succeed, it was largely because they persuaded courts that ‘hapless and innocent children’ should not be punished for the ‘sins’ of their parents,” Mayeri writes. “The capacious constitutional arguments women

SERENA MAYERI

advanced — that family-status-based disadvantage discriminated based on race and poverty subordinated women, denied parental autonomy, and limited sexual and reproductive freedom” appeared nowhere in judicial opinions. Mayeri writes that “the feeling of never quite belonging, of transcending categories of gender and race, informed Murray’s social and legal theorizing.” As a public persona, Murray “wrote poignantly about her mixed-race heritage” but grappled with sexuality and gender identity more privately. Murray dressed and passed as a young man in the 1940s and explored hormonal treatments to align physical being with inner sense of self. Following a very brief marriage to a man, Murray had several intimate relationships with women before entering a “happy and fulfilling relationship” with her long-term partner, Renee Barlow. Though interracial feminist activism achieved important victories in the late 1960s and early 1970s, the political alliances between activists remained tenuous as interests and priorities of feminists of color and “mainstream, white-dominated women’s organizations” diverged. But an increasingly conservative political climate and the activism of women of color also worked to unite the causes of feminism and racial justice. Murray’s hopes for a broad progressive political alliance that included southern white women remained only partially fulfilled, however. As anti-feminists such as Phyllis Schlafly galvanized conservatives around a reimagined Republican Party that celebrated “traditional family values” and merged social and economic conservatism, a partisan “gender gap” opened. But although many more white women than white men cast their ballots for Democrats in the late 20th and early 21st centuries, race and, for women, marital status, often proved stronger predictors of political identity than gender. Mayeri reflects on the many reverberations of Murray’s work that are still visible and powerful in contemporary gender and racial justice advocacy. Mayeri writes that, “[w]hile Murray’s vision of whitesouthern-female progressivism faltered in practice, her conviction that women of color would provide pivotal leadership for an American human-rights revolution found a lasting legacy” in Black Lives Matter, #MeToo, prison abolitionism, and many other vanguard movements. And activists in the LGBTQ+ community “can now strive openly, as Murray never felt she could, for safety and justice.” Mayeri concludes: “A century after the Nineteenth Amendment and more than a half-century after suffrage, intersectional advocacy that bridges islands of identity and ideology flourishes in the words and deeds of Murray’s inheritors.”

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CHINA’S RESPONSE

to

on research by

JAC Q U E S D E L I S L E Stephen A. Cozen Professor of Law & Professor of Political Science; Director, Center for East Asian Studies

“China’s largely successful, centrally mandated efforts to contain the pandemic and prevent its recurrence reflected defining and durable features of the Chinese systems of law, regulation, and governance.”

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COVID-19

In 2020, Jacques deLisle and Shen Kui, Professor at Peking University Law School in China and a former Fulbright visitor at Penn, published “Lessons from China’s Response to COVID-19: Shortcomings, Successes, and Prospects for Reform in China’s Regulatory State” in the University of Pennsylvania Asian Law Review. A later version of the article appeared in the Administrative Law Review as “China’s Response to COVID-19: The Chinese Administrative State in a Time of Crisis,” and another, related chapter will appear in the Routledge Handbook on Law and the COVID-19 Pandemic (edited by Joelle Grogan and Alice Donald). DeLisle is also Professor of Political Science, Director for the Center for the Study of Contemporary China, and Co-Director of the Center for Asian Law at Penn, as well as Director of the Asia Program at the Foreign Policy Research Institute. In the piece, deLisle and Shen expound upon the how “the handling of the [COVID-19] outbreak reflects characteristic weaknesses and strengths of the Chinese administrative state.” The authors begin with a brief discussion of the numerous legal and regulatory measures that were already in place before the COVID-19 crisis began — many of which had been influenced by the country’s experience with SARS nearly two decades earlier — including the Law on the Prevention and Treatment of Infectious Diseases, the Emergency Response Law, and an infectious disease outbreak Direct Reporting System to the China Center for Disease Control (CCDC). The authorities’ initial reaction was “dangerously slow,” the authors contend, as “reasons for serious concern” arose several weeks before the lockdown of Wuhan — the epicenter of the outbreak — in late January 2020. The initially slow response was followed by sweeping and severe restrictions, including prohibitions on travel, business closures, and residents’ confinement to their homes. The restrictions quickly extended across much of China, with authorities declaring Level I (highest level) emergencies. DeLisle and Shen assess the attributes of Chinese governance that contributed to the initial failure and the later “mobilizational” response to the COVID-19 outbreak. They point to the set of issues associated with “tiao-tiao / kuai-kuai and the resulting pattern of ‘dual rule,’” which they describe further: “Officials at a subnational level responsible for a field of regulation answer to two masters: ‘vertically’ to superiors in a functionally defined, hierarchical bureaucratic structure that reaches up to a ministry (or similar central entity) in Beijing (for which the metaphor is tiao — a long, narrow piece); and ‘horizontally’ to the general-purpose government at the officials’ own level — provincial, municipal, or still-lower (for which the analogy is kuai — a ‘lump’ or ‘block’).” The authors explain that one of the principles of tiao is “giving experts — in public health, medicine, and relevant fields of science — early access to information and greater authority to shape responses when a serious contagious disease outbreak threatens.” These rules place responsibility on national public health and medical experts to formulate central-level policies and adopt geographic widespread measures as well as coordinate with foreign counterparts and international bodies.


Kuai-based rules acknowledge that effective responses depend on the efficiency of local officials monitoring developments, guiding local branches, and coordinating efforts among local frontline units. Importantly, these types of rules “also assign early-stage responsibility to officials who, in practice and often in principle, will be held principally accountable for bad outcomes.” The authors next turn to the legal and policy measures in place and explore how they reflect kuai and/or tiao principles. The Emergency Response Law, for example, has heavily kuai aspects, with its tiered system of leadership roles and responsibility. The same law, however, also emphasizes tiao, as it tasks State Council departments to developJACQUES emergency response plans and structures as well as establish DELISLE criteria for the four levels of public health emergencies. Delving into the factors that contributed to the Wuhan’s officials’ slow early response to COVID-19, deLisle and Shen point to “features endemic to the ‘kuai’ side of governance.” “Local officials face a ‘double or nothing bet’ when encountering a problem of uncertain seriousness (including a novel, possibly communicable illness),” they write. “The official can report the emerging issue to superiors, as is sometimes mandated. . . . Doing so may have little upside for the official. It often will not be clear whether the counterfactual was a deadly pandemic or merely a fleeting problem, the avoidance of which higher authorities would not regard as a significant accomplishment and the reporting of which higher authorities might see as an attempt to shirk responsibility by passing an issue up the chain.” An official who reports problems can face adverse consequences, the authors explain, if the feared event never becomes quite as bad as it seemed — which may happen, ironically, precisely because of the swift measures taken by the official. Superiors may conclude that the official “cried wolf” and the official could “suffer career-damaging criticism for overreacting.” Staying quiet has its own potentially more serious ramifications, particularly if the problem becomes worse or unmanageable because of the officials’ lack of prompt, required reporting. Overall, the authors attribute “much in the initial reaction to the novel coronavirus” to “the logic of this ‘fess up or cover up’ choice for local officials.” Wuhan and Hubei party chiefs and hundreds of lowerlevel officials in Wuhan and other COVID-hit areas were dismissed in the aftermath of the botched early response, they note. The authors also address the tiao features of Chinese governance and the problem of “dual rule” through tiao and kuai, which, they write, are apparent in “what is often called China’s ‘fragmented authoritarianism.’” First, deLisle and Shen observe that governmental leaders tend to view their counterparts in other units as “outsiders.” As relevant laws assigned many key roles to provincial and local-level health commissions and disease control and prevention institutions, such organs tended “to align more with same-level governments over higher-level bureaucratic superiors,” which was evidenced by “the failure by key actors in the public health system in Wuhan to follow the Direct Reporting System and requirements to report immediately to the central public health authorities” and even to obstruct investigative teams dispatched to Wuhan by higher-level authorities. Second, the authors observe that “the relative strength and status of government units” matters, and “the public health and infectious

disease system” is “relatively weak.” DeLisle and Shen detail the history of the system, which has undergone several restructurings but note that “[s]enior public health experts and officials long have complained that public health policy was generally not a high priority for policy makers, that its importance was not understood by leaders or the public, and that the CDCC’s powers were extremely limited.” These unfortunate circumstances were reflected in several aspects of the early days of COVID-19, and, further proving the point, leaked documents showed a severe “lack of funding, capacity, and staff morale” at Hubei provincial center for disease control and prevention. Moreover, lawmakers did not raise the Direct Reporting System to the status of law or institute clear thresholds for direct reporting — a process that was “further undermined by medical personnel’s poor understanding of reporting procedures, the costs to them (in terms of time and distraction from treating seriously ill patients) of filling out reports, and doubts about whether cases fit the criteria for reporting in an environment where the importance of the Direct Reporting System had not been emphasized.” Third, the authors identify and place responsibility on the “environment of ambiguity born of legal and policy mandates, from multiple sources, that do not clearly assign functions and responsibilities,” and fourth, they write that the “coordination among siloed institutions is necessary for effective government action,” but that China’s “fragmentation of authority” makes such efforts difficult. Moreover, these issues are compounded by the country’s prioritizing of the economy or social order over public health. “Tellingly, concerns about triggering public panic or economic losses — thus putting at risk high-priority goals of order and growth — reportedly motivated Wuhan officials’ initial failure in fulfilling reporting duties and taking steps that would have risked public disclosure of the serious threat posed by the novel coronavirus,” they write. The authors also write of the strengths of the Chinese system, notably its “extraordinary ability to mobilize people and resources on a massive scale,” which included the construction of temporary hospitals within two weeks after lockdown. Coordinated actions between the National Health Commission, the CDCC, numerous ministries, local governments, public transport organs, public works crews, and party- and state-led organizations at the neighborhoodlevel were crucial to the national response. The authors note that “Chinese authorities also benefited from the weakness of factors that have been impediments to state responses in some other countries,” such as constraints over protecting privacy interests or threats of lawsuits over mask mandates or quarantine orders. Overall, deLisle and Shen conclude that China’s “largely successful, centrally mandated efforts to contain the pandemic and prevent its recurrence reflected defining and durable features of the Chinese systems of law, regulation, and governance,” but that the persistence of features that hamstrung the initial response and a deep-seated aversion to reforms that would remove restrictions on information or increase legal accountability for party and state actors could continue to impede reforms that could help avert a future pandemic. __ 5


COMPENSATION, COMMODIFICATION, AND DISABLEMENT: How Law Has Dehumanized Laboring Bodies and Excluded Nonlaboring Humans

on research by

K A R E N M . TA N I L’07, G R ’11 Seaman Family University Professor

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In a deeply insightful review of Nate Holdren’s 2020 book, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era, Karen M. Tani L’07, GR’11 explores a nuanced and moral conversation about labor norms, workplace compensation law, and the contemporary commodification of workers’ bodies — all of which often result in the further disenfranchisement of people with physical impairments. Tani’s work appears in Michigan Law Review’s Annual Survey of Books, one of the only top law review issues devoted entirely to the publication of extended review essays. Underscoring the present-day relevance of Holdren’s historical findings, Tani begins by situating the reader in a meatpacking plant during the COVID-19 pandemic. Drawing on journalist Jane Mayer’s July 2020 reporting, Tani highlights the ways in which the Trump Administration knowingly endangered many meatpacking workers when it issued an executive order meant to forestall state and local pandemic shutdown measures in meatpacking plants, which had become hotspots for the virus in many locations. Tani, drawing from Mayer’s work, underscores the connection between this governmental decision and the valuation of workers and workers’ wellbeing more expansively. “[L]ittle wonder that the owners of the U.S. poultry processing companies were so aghast at COVID19-related plant closures: they had calculated the value of their workers’ lives and that calculation favored continued production,” Tani writes. Delving into Holdren’s book, Tani begins by introducing the contemporary system for addressing workplace injury, which consists of workers’ compensation laws and employers’ insurance. The rise of these legal solutions and their implication for American life are Holdren’s focus. While acknowledging that the modern system is “generally recognized as an improvement” over what came before, Holdren sees value in taking a broader view and asking, as Tani puts it, “what might have fallen out of view along the way.” Prior to the existence of workers’ compensation laws, injured workers sought redress in tort actions, a solution that has historically garnered much criticism. Adding to these criticisms, Holdren notes how tort suits implicitly cast workers as commodifiable “economic objects” whose injuries could effectively be traded for a market price. At the same time, however, tort suits did allow workers to resist that logic, by seeking recompense for less tangible injuries (mental anguish, loss of enjoyment of life) and by giving them a forum to tell their stories. These opportunities diminished as the individual court-based solution eventually gave way to the “aggregate-oriented solution [of] workers’ compensation.” Under today’s version of that system, Tani explains, employers are generally required to maintain insurance coverage for workplace injuries; covered workers are guaranteed at least a fraction of their regular compensation when they are injured on the job. What intrigues Tani about Holdren’s historical account of this system is how he illuminates its logic and names its most disconcerting features. In Tani’s words, “workers’ compensation programs explicitly commodified workers, without even bothering to acknowledge other ways of valuing them.” Because these programs understood workers as, essentially, commodities, they also assigned different values to different working people — a feature that Holdren labels “cruel and unfair.” As Tani explains, “it makes the market for the worker’s pre-injury labor the mechanism for ascribing value to particular injuries”; moreover, “the market is hardly a natural or infallible force.” After summarizing Holdren’s primary insights, Tani elaborates on one of the book’s most intriguing and important sub-arguments: “[T]he compensation paradigm not only further commodified workers, but it also made workers’ physical impairments newly salient” as employers began to screen out people with physical impairments to “avoid[] risk.”


This argument is important for the way it disrupts common understandings of disability. Holdren disputes common thought pertaining to disabled workers’ historic inability to work by demonstrating that, in the past, it was actually quite common for employers to hire people with physical impairments; it was not until more recently, with the advent of workers’ compensation laws that

“[C]ompensation laws transformed workers with physical impairments from potentially employable, in certain employers’ eyes, to necessarily excluded.”

valued workers’ capacity post-injury regardless of their physical state prior to the injury, that employers began to “eradicat[e] impaired workers altogether from their payroll — which they now understood as their risk pool.” “Under the logic of insurance, [people with physical impairments] were simply bad risks, which threatened the solvency of the entire endeavor,” Tani writes. “And thus disability, unemployment, and poverty became ever more tightly linked.” Here, Tani explains, Holdren makes an important point about what “disability” is and where it comes from. His historical work shows quite directly the role of law in assigning meaning to physical impairments — in making particular differences seem disgusting, disqualifying, and shameful. “[C]ompensation laws transformed workers with physical impairments from potentially employable, in certain employers’ eyes, to necessarily excluded,” writes Tani. Building on Holdren’s insights about law and disablement, Tani notes that many Americans receive important benefits — such as health care — through their employer, thus exacerbating the loss that Americans with physical impairments feel when

they are excluded from employment. In discussing the stark social and cultural reality of relying on the government support, Tani summarizes, “the message is: if you aren’t working — or trying to work — you are a burden, a taker; your other contributions have no value; you deserve nothing.” Tani closes her review by reminding readers of the “bigger questions” that Holdren encourages readers to ask about the workers’ compensation system and about workplace injuries in America more broadly. Instead of getting stuck in the conversations that exist within the paradigm of our contemporary laws and policies, Holdren asks “why the problem of workplace injury exists in the first place, and why we accept it, both on a mass scale and in individual instances.” Of injuries that do occur, Tani writes that “we need not value them in ways that have anything to do with the going rate of the injured person’s labor power. Injury Impoverished asks us to imagine a legal framework that resists the naturalization of workplace injuries, however commonplace, and that rejects the notion that when you sell your labor, you’ve put every other aspect of your being ‘on the market,’ too.”

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on research by

DAV I D S . A B R A M S Professor of Law, Business Economics, and Public Policy

During the height of the COVID-19 pandemic, David S. Abrams was already compiling and analyzing empirical data to better understand the impact of the crisis on crime. Abrams, one of the country’s leading young economists working in empirical law and economics, collected data from 25 large U.S. cities and published his findings in “COVID and Crime: An Empirical Look” in the Journal of Public Economics in which he reported “a widespread immediate drop in both criminal incidents and arrests most heavily pronounced among drug crimes, theft, residential burglaries, and most violent crimes.” Homicides and shootings showed no decline while nonresidential burglaries and car thefts in most cities increased. Abrams concludes that this data suggests “that criminal activity was displaced to locations with fewer people.” Specifically, Abrams’ research uncovered overall crime rate drops of at least 35% in Pittsburgh, New York City, San Francisco, Philadelphia, Washington, D.C., and Chicago. He also found that the decline appears to have preceded stay-athome (SAH) orders and coincided with a decline in individual mobility. In the paper, Abrams begins by recounting the sparse contemporary literature about COVID-19 and crime and then looks to the early 1900s to explore the impact of prior pandemics on crime. He shares the findings of a 1919 Chicago Department of Health report, which found a 38% decline in crime rates in Chicago from 1917 to the same three-week period in 1918 during which there was a lockdown.

“This is astonishingly similar to the 35% overall decline in crime in Chicago in the first 4 weeks of the 2020 pandemic, relative to the same period for the prior 5 years,” he writes. Abrams then shares some additional background on crime and the pandemic, noting that generally “[t]he crime rate is a function of available opportunities and expected penalties.” He observes that evidence suggests that police presence and the enforcement of certain laws decreased once the pandemic began, “which would tend to increase crime rates due to the decreased expected penalty.” Due to a drop in mobility and the resulting decline in expected penalty, Abrams writes, “one should expect to see an increase in property crimes like car theft, theft from vehicles, and non-residential burglaries.” Conversely, because people were spending more time at home, a decrease in residential burglaries should be expected. Turning to economic conditions that may influence crime rate, Abrams writes that empirical studies support the theory that a higher unemployment rate impacts property crime the most. During the pandemic, however, a “tremendous government response” in the form of the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act, suggests that unemployment was “unlikely to have had a substantial impact on crime,” though he still includes the unemployment rate in some specifications. Abrams credits the Open Data Movement with making his research possible. He has also made the collected data available to the public at https://citycrimestats.com. Mobility data (data

“There is a widespread immediate drop in both criminal incidents and arrests most heavily pronounced among drug crimes, theft, residential burglaries, and most violent crimes.”

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DAVID S. ABRAMS


on individual movement) comes from Google COVID-19 Community Mobility Reports, generated from people who have turned on Location History for their Google Account and use a mobile device. Abrams calls the change in crime from the onset of the pandemic “large and sharp enough that the impact is clear from the time series.” He notes that the crime drop began between 10-14 days before widespread SAH orders, “and is almost coincident with mobility drop.” Abrams found that the drop in all types of crime was “substantial,” and that the crime rates then remained low for the seven weeks following the SAH orders. Specifically, total reported crime fell quickly by 23.3%. Property crime dropped 19.3%, and overall, most types of property crime fell substantially except for non-residential burglary and car theft. Theft rates also declined substantially by 28.2%, and theft from vehicles dropped by 20.3%. All violent crime rates dropped except for homicide. Simple assault showed the largest decline (33.3%), while robbery dropped by 20.2% and aggravated assault by 15.9%. Drug crimes saw a 65% decrease (though this regression included only the 12 cities that provided drug crime data). “There were almost certainly fewer low-level public altercations, especially associated with alcohol, as many public establishments were closed,” writes Abrams. Regarding the sharp decline in domestic violence and rape reports, Abrams concludes that the drops likely overstate true changes in crime because of both limited data and potential complications with reporting brought about by pandemic conditions such as close living quarters with abusers and closed schools. Abrams then addresses a critical question: “to what extent do changes in observed crime reflect changes in the real level of crime, rather than changes in reporting of crime?” He maintains that “much of the crime change is not simply a reporting artifact.” One approach to the issue looks at changes in the share of reports by police. Only two cities in the data set provide the source of crime incident reports.

“The vast majority of crimes in both cities are reported by individuals other than police, with one main exception, drug crimes,” writes Abrams. “In Nashville, all crime types saw a modest increase in the share reported by police. This suggests that the decline in overall crime reports was likely not predominantly due to reporting changes, or that reporting dropped in very similar proportions by police and individuals.” A second approach to analyzing the impact of reporting changes is based on geographic location. Many bars and restaurants closed under SAH orders, and if “changes in crime reports reflect an overall reporting decline, then there should be a consistent drop in crime that is independent of distance from bars.” Instead, data showed that “[s]imple assaults, drug crimes, and robbery all dropped between 30 and 40 percent of prepandemic levels within 25 meters of the establishments.” These drops all fall as the distance from the establishments increase. Abrams then considers arrests as a measurement of crime changes and finds that results from regressions using arrests reveal an even greater decline than criminal incidents. “Drug arrests fell a massive 77% and property arrets by 34.8%,” he writes. “Violent crime arrests had the smallest decline, at 16.8%, slightly lower than the drop incidents. Together this evidence suggests that police resources were focused less on arrests for most crime types, except for violent.” Abrams concludes with a stark reminder that the pandemic rages on and that “political leaders, law enforcement, as well as individuals will need to account for the changed circumstances as they make decisions for some time to come.” He expresses hope that his research can help inform such decisions as well as “help us better understand the factors that impact crime in normal times as well.” www.davidsabrams.com

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Overall Crime Incidents Per Capita for 25 of the largest u.s. cities, 2015-2020

Incidents per 100,000

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2017 2019 2020 2015 2016 2018

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States begin to issue stay at home orders

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Death of George Floyd Jun 1

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DEFINED CONTRIBUTION PLANS AND THE CHALLENGE OF

FINANCIAL ILLITERACY “The financial landscape and labor markets that employees face today have changed substantially. It is time to change the regulatory framework to equip workers with the knowledge and skills they need to make informed decisions about their pensions in the twenty-first century.”

on research by

JILL E. FISCH Saul A. Fox Distinguished Professor of Business Law; Co-Director, Institute for Law and Economics

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In their analysis of 2015 National Financial Capability Study (NFC) data published in the Cornell Law Review, Jill E. Fisch; Annamaria Lusardi, University Professor of Economics & Accountancy at George Washington University; and Andrea Hasler, Assistant Research Professor in Financial Literacy, Global Financial Literacy Excellence Center at George Washington University School of Business demonstrate that changing trends in United States retirement plans pose challenges for “workplace-only investors,” a category of investors the authors define as individuals “whose only exposure to investment decisions is by virtue of their participation in an employer-sponsored 401(k) plan or the equivalent.” Workplace-only investors, the authors explain, exist in the vulnerable space of holding significant autonomy over their retirement investments while largely lacking the financial literacy to do so adeptly. The authors begin by providing a brief history of the evolution of retirement savings plans in America, emphasizing the switch from defined benefit plans to defined contribution plans. Defined benefit plans, in which the employer pays the employee a set monthly amount following retirement, involve the employer retaining control over investments, managing plan assets, and navigating risks. These plans were often underfunded and overly risky, especially when employers funded the plans largely with their own stock. Due to these and other issues, employers have increasingly replaced defined benefit plans with defined contribution plans. In a defined contribution plan, the employees contribute a portion of their earnings to their own retirement fund; some employers match either all or part of the employee’s contribution, and employers offer employees “menus” of options in which the contributions are invested. Among the many issues that the authors identify with retirement plan policy is that “one size does not fit all. Both the employer’s selection of a savings rate and a choice of investment for the employees’ savings raise potential problems because employees vary in their age, outside savings, income, debt obligations, and funding needs when they retire. . . . But employees typically lack any basis by which to evaluate whether the employer’s default choices are appropriate for them and stick to what is chosen for them.” A number of cases regarding the employer’s obligations regarding the investment options in their employees’ 401(k) plans have been litigated across the courts. “Many of the cases are still pending, and courts have shown varied degrees of sympathy to the plaintiffs’ claims,” Fisch and her co-authors write. “For the most part, however, the courts have continued to focus on the primacy of participant choice and to dismiss claims that asked the court to second-guess the sponsor’s choice of investment options.” In their analysis of the NFC Survey data, the authors look at responses from 14,640 respondents. Sixty percent of respondents qualify as workplace-only investors. The authors compare these respondents to other investors, including “active investors,” or “those who have made decisions about their investments outside of an employer-provided retirement account.” The data indicate that, in comparison to active investors, workplace-only investors tend to have a much lower rate of financial literacy; this finding is based on respondents’ demonstrated knowledge of concepts such as compound interest, bond pricing, and risk diversification. Demographic data show that certain populations tend to be more vulnerable to financial illiteracy. Young workers make up a significant proportion of employees who have 401(k) plans. Whereas the authors postulated


that one might expect young workers who were introduced to investing through their 401(k) plans to continue to gain knowledge over time, the data suggest that this does not happen. Across age brackets, the financial literacy of younger and older workplace-only investors did not differ significantly. Education plays a significant role in financial literacy, with those who have college or higher degrees being more likely to fall into the category of “active investors.” The authors show, however, that “both general education and specialized financial knowledge matter for investment behavior; there is an independent effect of financial literacy even after controlling for education.” Women are less likely than men to be active investors, and people who make less than $100,000 a year are less likely than wealthier people to be active investors. Not only are workplace-only investors less likely to own assets, such as a house, but they are also more likely to be in debt due to student loans, mortgages, and auto loans. Further, they are also more likely to “exhibit a behavior that is conducive to paying high interest rates and fees on credit cards,” which, in combination with other evidence, demonstrates that workplace-only investors are not only different from active investors in their retirement account-related actions but in their financial actions more broadly. In 1974, Congress passed the Employee Retirement Income Security Act (ERISA), which, among other things, both imposed a minimum funding requirement for defined benefit plans and created fiduciary obligations for employers managing pension plans. ERISA heavily emphasizes employees retaining autonomy over their retirement investments — a policy choice that makes sense considering that ERISA was largely passed as a response to the problems concerning unsound defined benefit plans. Nonetheless, the authors point out that ERISA’s reliance on employee participation presents concerns, especially considering the widespread financial illiteracy among employees. “If plan participants lack the ability to distinguish between investment options and reject inferior or inappropriate choices, it is arguably problematic for a plan to include those choices, and it may not be reasonable for courts or regulators to accept a plan merely on the basis that it contains some high-quality options,” the authors write. The authors consider two potential responses to improving retirement investing. One possibility is modifying ERISA to impose greater responsibility on plan sponsors. The authors conclude this approach is problematic for several reasons. Alternatively, they argue that employer-sponsors of participant-directed 401(k) plans could be required to evaluate and remediate the financial literacy of plan participants, thereby enhancing the effectiveness of participant choice. They conclude that this approach is more promising and offer preliminary reflections on how to implement it. The authors suggest that the Department of Labor (DOL) issue guidelines that both “mandate employer-provided financial education” and “govern what is considered an acceptable program, along the same lines in which they have expressed judgments on what are acceptable investment options.” A regulatory requirement, the authors argue, would not only ensure that all workers have access to financial education, but it would also enable specific employers to tailor their programs to their own needs and standards. This regulation would also encourage innovation in the market, as firms would likely exchange information about the best kinds of financial literacy education programs available.

In discussing the importance of financial education, the authors point out that those with more financial literacy are more likely to invest in the stock market, plan for retirement, have access to shortterm savings that can be used in emergencies, and have better debtmanagement skills. “Simply stated, it is hard to imagine that ignorance is bliss when it comes to investment, and that employees could get to the right investment for them without having any knowledge of the basic principles of finance,” they write. “And financial ignorance, in particular of the concepts related to investment decisions, is well documented in all of the studies we have reviewed.” The authors concede that measuring the effectiveness of financial education can be complicated, though recent work has shown that, “not only do financial education programs work, but also … the details of the programs matter substantially.” For example, studies have indicated the effectiveness of financial literacy programs implemented as rigorous, required courses in high schools. Moreover, the authors note that studies of workplaceimplemented financial literacy education “hold[] much promise]” and identify three key components of an employer-provided financial education program: “(1) a self-assessment; (2) minimum requirements about the content of programs; and (3) timing — when the program and components of the programs should be provided.” For the assessment, the authors rely on a set of questions that have “been tested in many national surveys and [have] provided robust findings.” Such an assessment would serve several purposes, including determining the specific type of financial education different workers require and enabling both employers and employees to track progress in financial literacy over time. The authors write that the DOL could “introduce minimum requirements as to what should be included in a program to provide the working knowledge and skills necessary to navigate the defined contribution system.” Ideally, financial literacy programs should include information beyond retirement savings and encompass topics such as home purchasing and debt management. Finally, the authors underscore the critical nature of these programs’ timing, writing that “education is most effective when it is provided at the time that people have to make decisions.” Accordingly, the most effective programs could be provided at critical financial decision-making moments, such as when employees are hired, leave their jobs, or review their benefits. In summary, the authors conclude that “workplace-only investors are too vulnerable to take sole responsibility for their current and future financial well-being,” and lawmakers have an obligation to support employees in navigating these processes. Though they consider two potential solutions — requiring greater employer oversight of employee investments and implementing mandatory employee financial literacy education programs — they determine that the latter option is more promising and call on the DOL to use its power to mandate employer-sponsored financial education. “The financial landscape and labor markets that employees face today have changed substantially,” the authors write. “It is time to change the regulatory framework to equip workers with the knowledge and skills they need to make informed decisions about their pensions in the twenty-first century.” __ 11


Framing the Chicago School of Antitrust Analysis on research by

H E R B E R T H OV E N K A M P

James G. Dinan University Professor

In their recent scholarship published in the University of Pennsylvania Law Review, Herbert Hovenkamp and Theodore Nierenberg Professor of Economics at the Yale School of Management Fiona Scott Morton present a critical analysis of the Chicago School and its pivotal, historic influence on antitrust thought and law. The authors begin with an overview of the Chicago School’s history, development, and key contributors. They acknowledge that the origin of the Chicago School has been debated, and they look critically at Ed Kitch’s popular account “The Fire of Truth,” which they remark is “also notable for what it omitted”; among its omissions are the scholarship of Robert L. Hale, Walton Hamilton’s Law and Economics, and “the single most important question that divided the Chicago School from most of its alternatives, the Legal Realists in particular: are markets similar or do they differ from one another in fundamental ways?” Throughout its history, the Chicago School’s “strong presumption that markets work themselves pure without any assistance from government” is underscored by its rejection of imperfect competition theories, something that the authors flag as the movement’s primary shortcoming. “The rejection of inconvenient advances in economics became a hallmark of Chicago School analysis. . . . Of course, an ideological commitment to nonenforcement and a desire for competitive markets can come into tension whenever firms use the profits from market power to obtain and keep that market power,” the authors write. By the 1980s, “more up-to-date economic analysis revealed anticompetitive conduct and called for greater enforcement” and “many more patterns of anticompetitive conduct could be explained and understood, particularly in those oligopoly markets.” At the same time, the Chicago School remained driven by the belief that the government should not intervene in the market unless a company’s conduct could clearly be proven to be anticompetitive — a shortfall that the authors note became more and more antiquated with the advancement of game theory, estimation techniques, and other related elements in contemporary economic study. The first part of the essay provides an overview of the Chicago School’s role in the creation and development of antitrust law, particularly in how economists theorize about markets and their structure. The authors write that the Chicago School’s response to the notion that different industries required different regulatory interventions “was to develop a common theory of competition that would cut across market structures — something the economics profession increasingly understood to be impossible.” Drawing on Chicago School economist George Stigler’s “Theory of Economic Regulation,” Hovenkamp and Morton surmise that the “message was that regulation is not a consequence of deficiencies in markets, but rather of political imperfections that permit interest groups to control markets for their own benefit.” Regarding the Chicago School’s stance on oligopoly, the authors contrast Richard Posner’s 1969 essay on the subject with the work of Donald F. Turner, a Harvard School scholar who proposed breaking up large firms in concentrated industries. Further, the authors also comment on the views of Chicago scholar Robert Bork, who both “denied the existence of oligopoly as a serious antitrust problem” and voiced doubts on the relevance of tactic collusion. Characterizing Bork’s views as “quaint, simplistic, and wrong,” the authors point to revisions of the 1968 Merger Guidelines, which increasingly apply weight to the ways in which market structure can and does impact competition. __ 12


“Faced with the choice of moving to models that provided greater verisimilitude and predictability, but that required more intervention, or clinging to the past, the Chicago School chose the latter.”

HERBERT HOVENKAMP

Continuing to contrast the Chicago School with the Harvard School, the authors deem the Chicago School’s treatment of barrier to entry principles as “much more normative,” with a main difference in the approaches being how each School treats fixed costs and economies of scale. The authors dispute Stigler’s view that scale economies or network effects exist unproblematically, pointing out instead that “those forces will cause different effects depending on the setting, and . . . the welfare economics may not be positive unless every entry barrier simply returns appropriate gains to an efficient, foresighted firm.” Regarding merger policy, the Chicago School was divided; again, the authors contrast Posner’s views with Bork’s to demonstrate the variation within the School. Nonetheless, the authors write that the “dramatic rise of ‘unilateral effects’ merger analysis did not fit into the Chicago School antitrust economics at all,” going on to explain that the School’s inherent resistance to monopolistic competition analysis positioned it in opposition to emerging policy, such as the government’s Vertical Merger Guidelines. “As the discipline of economics has become richer and more able to reflect the true economy over time, realistic elements such as entry and mobility barriers have become better understood. . . . The rise of the digital economy and the impact of scale, scope, network effects, and the power of an installed base show that entry barriers in many growing industries are getting bigger, not smaller,” the authors write. In their discussion of how the Chicago School analyzes leverage, the authors write that Justice Brandeis’s opinion in Carbice Corp. v. American Patents Development Corp., at which the Chicago critique was aimed, actually involves a theory that originated nearly 100 years prior to the case. The Chicago School postulates that the demand for complements is “based on consumers’ willingness to pay for the package.” Further, the Chicago understanding that a patent exists as an “investment which the inventor should be allowed to monetize without limit because this will efficiently stimulate more innovation” is, in the authors’ view, too simplistic when one considers the possibility of a more complex situation wherein patents can actually be used to harm competition. Lastly, the authors note the Chicago School’s tendency to apply heavier significance to “type one” errors (false positives, or the possibility that the court may find anticompetitive behavior where it does not exist) and little significance to “type two” errors (false negatives, or the possibility that the court may not find anticompetitive behavior where it exists).

“Given the strong incentive that firms have to cease competing, and the strong ability they have to reduce competition in the absence of antitrust laws,” they write, “it is economically naïve to assume that markets will naturally tend toward competition.” The second part of the essay describes the Chicago School’s influence on the judiciary, which the authors summarize as “more ideological than technical,” especially because of its lack of evidentiary support. “The Chicago School has lost ground in the Supreme Court not only vis-à-vis Harvard School antitrust but in other ways as well, and even when Justices vote against enforcement,” the authors write, pointing to recent examples that include Ohio v. American Express Co.; Apple, Inc. v. Pepper; and the three-Justice dissent in North Carolina State Board of Dental Examiners v. FTC. The authors close their analysis by addressing the welfare “tradeoff” model relevant both to the Chicago and Harvard Schools, which they find problematic in two ways: both because it “requires cardinal measurements of productive efficiency gains and allocative efficiency losses” and because it “permits output reducing mergers if the gains to producers exceed the losses paid by consumers.” Courts have generally required that the defendants prove the anticompetitiveness in merger antitrust cases, a practice that the authors note results in few defendants “succeed[ing] in proving the requisite efficiencies.” The authors conclude by writing that, “if we did have a perfectly competitive economy, then of course antitrust intervention would be unnecessary”; however, given the reality of imperfect competition, the Chicago School’s theory fails to provide an accurate and workable model for antitrust analysis.

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INTERNAL AND EXTERNAL

CHALLENGES TO CULPABILITY on research by

STEPHEN J. MORSE Ferdinand Wakeman Hubbell Professor of Law; Professor of Psychology and Law in Psychiatry; Associate Director, Penn’s Center for Neuroscience and Society

“[W]e are in a condition of unprecedented internal challenges to the importance of mental states in the context of abnormalities and of external challenges to personhood and agency based on the new behavioral neuroscience and genetics,” writes Stephen J. Morse in “Internal and External Challenges to Culpability,” which was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law and has been published in the Arizona State Law Journal.

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Morse argues that mental states should remain “central to the ascriptions of culpability and responsibility more generally” despite recent internal and external challenges. The analysis of this issue must always begin, he argues, “with the law’s conception of the person as a folk psychological agent who can potentially be guided by reason.” Morse writes that “human action and consciousness are produced by the brain, a material organ that works according to biophysical laws. At present, however,” he continues, “we do not have a clue about how the brain enables the mind, or about how action and consciousness are possible.” These concepts, though, “are at the heart of both commonsense, ‘folk psychology,’ and the conception of the person inherent in judgments about responsibility and culpability.” Folk psychology, explains Morse, is a “generic term for all psychological theories that in part explain human action by mental states such as desires, beliefs, and intentions.” Further, the capacity for agency is integral to the concepts of personhood and responsibility. “Law and morality as action-guiding normative systems of rules are useless, and perhaps incoherent, unless one accepts this view of personhood,” he writes. “This explains why the law is and must be a thoroughly folk-psychological institution.” If, on the other hand, our “conscious will” is illusory, “then concepts of responsibility and desert may be equally illusory or at least inapplicable in most cases of human activity.” Regarding internal challenges, Morse focuses on three recent United States Supreme Court decisions — Montana v. Egelhoff, Clark v. Arizona, and Kahler v. Kansas — that allow restrictions on the extent to which defendants may introduce evidence of mental abnormalities to avoid conviction. He argues that these opinions are “misguided” and should not be adopted legislatively or judicially. Instead, Morse argues, they should be rolled back legislatively whenever possible. First, Morse addresses the use of voluntary intoxication to negate mens rea. In Montana v. Egelhoff, the Supreme Court upheld a Montana statute that prohibits a defendant from using intoxication evidence to negate mental states. Morse writes that the statute goes “even further toward strict liability than the Model Penal Code,” which provides that “a voluntarily intoxicated defendant may use evidence of such intoxication to negate purpose and knowledge but not to negate recklessness.” The interpretation adopted by Justice Ginsburg, writes Morse, is “that the intoxication provision simply works to redefine the mental state element for murder to include an objective mens rea: negligence.” Montana didn’t interpret its own law the same way, however. “More important for my analysis, this redefinition undermines the standard view that culpability is hierarchically arrayed depending on the blameworthiness of the various mental states,” Morse writes. “Our society’s dominant morality simply does not accept, and


“I do not want to live in the radical’s world that is stripped of genuine agency, desert, autonomy, and dignity. . . . For all its imperfections, the law’s vision of the person, agency, and responsibility is more respectful and humane.” STEPHEN J. MORSE

with good reason, that negligent harmdoing is as blameworthy as committing the same harm purposely or with conscious awareness.” He characterizes holding Egelhoff fully accountable for anything he did while unconscious without proof of the mental states usually required as “strict liability” and warns that “our fear of Egelhoff and revulsion at his deeds should not be allowed to promote injustice.” Morse observes that the Constitution’s requirement that the prosecution prove each element of a crime beyond a reasonable doubt “almost always makes it more difficult” for them to secure a conviction on the most serious charge. “Our society bears this risk because we believe that it is unacceptable to convict a legally innocent person,” writes Morse. “Concern with culpability thus almost always conflicts with concern for public safety. Weakening mens rea requirements and indirectly criminalizing non-criminal behavior or treating minor criminal violations as major is an illiberal and surely ineffective remedy.” Next, Morse turns to the use of mental disorder to negate mens rea, “often misleadingly termed ‘diminished capacity,’ mistakenly suggesting that these doctrines are some kind of mitigation or partial excuse.” While the doctrines are “not a lesser form of the insanity defense,” he writes, courts often produce faulty reasoning about whether a defendant should be permitted to present mental disorder to negate mens rea because they “wrongly believe the defendant is requesting the court to create a ‘mini’ insanity defense.” Morse commences a discussion of capacity. “Modern inquiries into states of mind, both academic and judicial, seem obsessed with the vexed question of whether a defendant had the capacity to form mens rea, but either a defendant had the requisite mens rea or he did not,” he writes. The determination on this issue, Morse notes, “requires a counterfactual inquiry that we lack the clinical and scientific resources to answer.” He cites the examples of Daniel M’Naghten, who believed the Tories were about to kill him and so he plotted to kill the Tory Prime Minister, Robert Peel, and Andrea Yates, who killed her children because she believed they would become corrupt and tormented by Satan for eternity, to show that “even the most delusional or hallucinating person can form the requisite mental state.” Morse contends that, in particular, in Clark v. Arizona, the Supreme Court majority “goes quite wrong, not only confounding mens rea and legal insanity, but forcing psychiatric and psychological evidence into an arbitrary system of classification that is unworkable and that had never been considered or argued by Arizona.” The Court devised an “unprecedented tripartite construction” of evidence: (1) observation, which could be presented by lay or expert witnesses; (2)

mental-disease evidence to be presented by an expert and inadmissible under State v. Mott, an Arizona case that held psychiatric testimony inadmissible to negate specific intent and evidence of mental disorder inadmissible to negate any mens rea element; and (3) capacity evidence, also inadmissible. In its decision, Morse writes, the majority “not only blurred the distinction between mens rea and insanity, but also made wholly inconsistent observations about the relationship between the two.” Moreover, “complete channeling of expert evidence to the insanity issue nevertheless again promotes injustice.” Concluding this section, Morse emphasizes the immorality of the state in punishing those “whose mental disorder prevented them from forming mens rea” and cautions us to “be wary of attempts to dilute [fair ascriptions of blame and imposition of punishment] by redefinitions of elements and affirmative offenses or by evidentiary rules.” Lastly, Morse addresses the existence of an independent, affirmative defense of legal insanity through the court’s holding in Kahler v. Kansas: that the Constitution does not require a state to provide an independent, affirmative defense of insanity. “I have long thought that the Constitution did not require an independent affirmative defense of legal insanity if an alternative that would do equal justice could be found,” writes Morse. “The Court thought it had succeeded in finding a just alternative to an affirmative defense of legal insanity, but this alternative is a practical failure that denies justice.” Morse then turns to the “newer, broader challenges to personhood, agency, and responsibility that are fueled by alleged advances in behavioral neuroscience and genetics.” He calls these challenges the “threat from determinism and the specter of the person as simply a ‘victim of neuronal circumstances’ (VNC) or ‘just a pack of neurons’ (PON).” Acceptance of these principles, Morse writes, “would be nothing short of radical and completely unmoored from standard views of responsibility.” Morse maintains that without any conceptual or empirical reason to believe these sometimes “quite radical” propositions are true, there is no reason to abandon notions of criminal responsibility, which have been developing for centuries, in favor of adopting “the proposed, radical conception of justice.” Judge Morris Hoffman co-authored the original mens rea material from which the article is derived, and Professor Richard Bonnie of the University of Virginia School of Law co-authored the original insanity defense material from which the article is derived. Morse and Bonnie also coauthored the amicus brief on behalf of 290 law professors in the Kahler case.

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LEASES AS

FORMS on research by

DAV I D A . H O F F M A N William A. Schnader Professor of Law; Deputy Dean

Through the largest ever study of residential leases, David A. Hoffman and colleague Anton Strezhnev, Assistant Professor of Political Science at the University of Chicago, offer an unprecedented glimpse into the Philadelphia rental housing market based on nearly 170,000 residential leases filed in support of more than 200,000 Philadelphia eviction proceedings from 2005 through 2019. In “Leases as Forms,” published as an Institute for Law and Economics Research Paper, Hoffman and Strezhnev explain their dual findings that the incidence of illegal, unenforceable terms in residential leases have increased sharply over the last 20 years and that factors such as geography and race do affect the kinds of terms tenants face. The scholars’ future research and scholarship will continue to analyze the dataset with an eye toward proposing better regulatory strategies to address the existing disparities in how formal legal rules affect citizens. “Residential leases are ubiquitous, economically significant but understudied contracts,” write the authors. “While more than a third of American households rent, the literature has systematically examined only around 100 distinct leases. That deficit is particularly striking for contracts whose alleged breach results in evictions, as these agreements provide the basis for the exercise of the force of the state to, quite literally, turn poor families out on the street.” The authors’ research focuses on answering several questions, including how bad leases are, why they are bad, whether eviction leases are different, the effect of local geography, and whether tenant characteristics matter? The authors begin the paper by establishing the framework of leases as objects of study. That is, the history of the study of leases points to a strong theme “that leases permit landlords to dominate tenants” and a “consumer law tradition” that “focuses on the purportedly negative effects of disparate bargaining power.” Hoffman and Strezhnev note, however, that “literature on contracts-as-forms is to the contrary,” finding that boilerplate terms are the norm thanks “to a very strong form of inertia and aversion to change of the template.” __ 16

Though Hoffman and Strezhnev studied over 100,000 private contracts, they found only a handful of distinct standard form leases among them. Such leases are forms often drafted by non-profit landlord associations or downloaded from commercial internet suppliers. In general, the prevalent types of leases generated from “cheap internet forms” contain worse rules for tenants than the proprietary leases that were once common. Over time, it has become easier and less expensive for landlords to adopt such common forms, meaning that access to justice for landlords has gradually stripped tenants of their rights. In addition to the leases, the researchers analyzed eviction proceedings information to gather the property’s address (so they could be geocoded), the name of the plaintiff/landlord, the outcome of the case, the amount of ongoing rent demanded, and whether the tenant had legal representation. From a private firm, Hoffman and Strezhnev gathered information about race, gender, voting history, and consumer data where possible. The authors focused on four specific provisions that are certainly or probably unenforceable, or at the very least oppressive: (1) exculpatory clauses, which disclaim liability for negligence (nearly always unenforceable); (2) as-is clauses, which purport to waive the implied warranty of habitability (usually unenforceable); (3) holdover tenant penalty clauses, which state that tenants who do not leave after the lease expires owe an increased sum (probably unenforceable); and (4) waivers of notice, which allow the landlord to commence eviction proceedings before the expiration of a 15-30 day notice period required by the Landlord-Tenant Act (likely permissible by law but oppressive). Through their research, the authors unveiled “striking patterns” regarding the correlations between wealth and unenforceable and oppressive terms. “Contrary to previous research,” they write, “unenforceable and oppressive terms appear to be positively correlated with wealth, at least measured by ongoing rent obligations in eviction leases.” Indeed,


DAVID A. HOFFMAN

“Contrary to previous research, unenforceable and oppressive terms appear to be positively correlated with wealth, at least measured by ongoing rent obligations in eviction leases.”

in areas of the city with greater income levels, the proportion of leases with one of the unenforceable provisions “is notably higher” than in areas with comparatively poorer residents. Proceeding from this observation, Hoffman and Strezhnev examine the question of whether this relationship is “primarily driven by differences in the location of the property or if there is something about the individual characteristics of the tenants that predicts whether a lease will contain one of these terms.” Their data set of leases suggested to the authors that landlords “specialize by tenant type, as tenants cluster by wealth, class, race, and ethnicity.” Moreover, the patterns revealed by geolocation of unenforceable conditions “do suggest likely clustering of lease templates favorable to landlords among those landlords in particular regions of the city associated with more well-resourced landlords.” The authors observe that although landlords don’t generally tailor leases for individual tenants, “some landlords appear to specialize based on tenants’ race, and when doing so, use distinctive lease strategies.” For example, Black tenants are especially vulnerable to lease terms that permit eviction if anyone uses drugs on the premises or commits a crime. “We find essentially no association between census-tract median income and the prevalence of drug/crime clauses,” the authors write, “but a strong positive relationship between the % of residents who are Black and the share of leases that contain these provisions.” In practical terms, they note, “As this request is not made in minority-majority tracts, it has the effect of enabling race-based private policing of tenants.”

The final section of the paper explores the broader implications of the authors’ findings. First, they write, the data point to the “perverse” proposition “that access to justice, at least for landlords, may have hurt tenants.” As the “costs of formalization and standardization decreased (due to the internet),” tenants increasingly “faced legally unfriendly leases.” This, the authors suggest, lays a path to a “more muscular regulatory strategy” as well as a sharper focus on the purveyors of shared leases by advocates. On the role of race, Hoffman and Strezhnev state that their findings suggest that “landlords are (implicitly) choosing leases . . . based on a stereotyped projection about their behavior.” The authors note that tenants choose their residences within “a world of restraints” that encompasses factors such as access to mass transit or a lack of capital, which may also affect employment. “Regardless of the precise etiology of why Black tenants in white neighborhoods are more likely to face clauses permitting eviction for crime or drugs, we do observe that they unequally confront that hazard,” they write. “Such clauses provide landlords with an option to exercise at their discretion — simply put, Black and white tenants in Philadelphia are not equally likely to face consequences for crime or drug use in their leaseholds, and the difference cannot be explained by hyper-local crime trends.” Hoffman and Streznhev conclude the paper with an indication of where their research is headed next, i.e., “how lease terms affect the hazards of eviction itself.”

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LOCAL ELECTED OFFICIALS’ RECEPTIVITY to

REFUGEE RESETTLEMENT IN THE UNITED STATES

on research by

BETH SIMMONS Andrea Mitchell University Professor in Law, Political Science and Business Ethics

“Overall we find that officials across the political spectrum are receptive to a broad range of refugee groups, which offers a timely rejoinder to suspicion toward refugee resettlement prevalent in national U.S. politics.”

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An interdisciplinary team of researchers from across the University of Pennsylvania, including Beth Simmons, engaged in a qualitative-quantitative study aimed toward better understanding how local government officials perceive refugee resettlement in the U.S. The implications of this study, published in the Proceedings of the National Academy of Sciences of the United States of America (PNAS), may help to inform both federal-level policymakers as well as conversations about refugee resettlement more broadly. While the authors point out that the stated purpose of the U.S. Refugee Admissions Program is humanitarian in nature, they also explain that “an abundance of scholarship shows that members of the public favor refugees with particular attributes, such as language proficiency and in-group religious identity.” In their research, the authors sought to investigate how different refugee-group attributes impacted local elected officials’ attitudes toward refugee resettlement. Though many decisions about refugee policy are made at the federal level, the authors begin by demonstrating the powerful role that local elected officials play in both the policymaking and resettling processes. Not only do their opinions contribute weight that may be factored into federal level policy, but they are also the ones potentially responsible for connecting newly resettled refugees with social services, housing, and jobs. In the study, the authors worked with CivicPulse to distribute a survey to 574 elected officials representing town, municipal, and county local governments across the United States. Respondents were asked to read pairs of randomly generated refugee group profiles and record whether they were receptive to either group, neither group, or one specific group. The refugee group profiles each contained randomly generated values for seven theoretically relevant attributes that the authors determined might affect a local elected official’s receptivity, including: education, sponsorship status, language skills, religion, gender/family group makeup, age, and region of origin. The authors conclude that, overall, local elected officials display receptive attitudes toward refugee resettlement. Fifty-one percent of survey respondents indicated they would accept each of the six hypothetical refugee groups with which they were presented; only 13% indicated that they would not accept any. The remaining 36% of respondents who indicated they would accept some refugee groups and not others contained significant variance as to which attributes garnered receptivity; generally, the results suggest that local elected officials tended to prefer refugee groups who they expected to be compatible with the local economy and community. The data indicate that respondents favored more educated refugees, which may be because more educated refugees could be viewed to be more likely to contribute to the local economy. Further, survey respondents were more likely to support refugee groups who were sponsored by


BETH SIMMONS

a regional or local business compared to those who are not, likely for the similar reason that a refugee group’s economic integration is a priority for local officials. Local officials were also more likely to support refugee groups with fluent or broken but functional English skills over those with very little or no English. “Since officials likely associate refugees’ English proficiency both with refugees’ sociocultural fit and their ability to participate in the local economy, we cannot definitively associate this finding with a particular mechanism,” the authors write. “However, officials clearly preferred English speakers to non-English speakers, even when refugees’ English skills were imperfect.” Refugee groups consisting of families and single women tended to garner more support than refugee groups consisting of single men. The authors postulate that this finding “likely results from a perception that single men are more likely to participate in socially disruptive behavior.” This complicates the economic analysis; the authors note that the “support for family groups over single men suggest that respondents were focused on societal fit of the group’s composition, rather than the potential fiscal burden of families.” The authors also concluded that local officials did not seem to demonstrate any preferences for refugee age or region of origin, though this indication may be due to the age cutoff (40 years old) that the authors used across their study. “Since adults above or below age 40 can plausibly be within prime economic productivity years, if respondents prioritize refugee economic contributions, they may be roughly indifferent between these two categories,” the authors write. In addition to the survey, the authors included an open-ended component in the study, from which they discerned that language skills were the most-referenced point of concern by the respondents, followed by education and sponsorship status. In line with the survey results, the authors categorized almost half of the responses to their open-ended questions as “Economy” and about a third as “Social/ Cultural”; however, they note that, “[s]urprisingly, gender/family group makeup and religion were not frequently mentioned, despite their effect in the conjoint portion of the survey.” The authors suggest that this omission may be explained by social-desirability bias, as it is possible that respondents were more willing to express certain preferences in the survey rather than the open-ended response. The researchers further analyzed their collected data by looking at the demographic information of the officials’ jurisdictions, finding

that jurisdictional political ideology, familiarity with immigrant communities, and population all played roles in the degree of receptivity local officials demonstrated. Officials in areas that voted for Donald Trump in the 2016 presidential election exhibited both lower levels of support for refugee resettlement generally across all attributes, as well as preferences toward refugee-groups that were Christian and more educated. Officials who have had more practice interacting with non-U.S. citizens were more likely to be receptive to refugee groups across all attribute levels than those who had less frequent non-U.S., citizen interactions. Lastly, officials in areas with larger populations tended to be more supportive of most refugee group attributes. The authors drew two primary conclusions from their work: (1) local elected officials are, on the whole, supportive of refugee resettlement in the U.S. and (2) concerns for economic and community fit remain paramount to the discussion. First, the authors found that “in line with the stated humanitarian focus of the U.S. Refugee Admissions Program . . . many local elected officials are supportive of refugee resettlement, regardless of refugee group attributes,” notwithstanding the possibility that social-desirability bias might have played a role in swaying survey results in the favor of refugee resettlement. That said, the authors go on to reason that “if local officials are concerned with the social acceptability of their answers in an anonymous survey, they are also likely to modulate their positions in public-facing policy discussions.” Second, the authors found that local officials do exhibit concern for “refugees’ ability to both fit with local values and participate in the local economy.” The open-ended responses support this conclusion and suggest that economic concerns tend to take precedence. In closing, the authors emphasize that concerns about economic growth and community fit are “neither legal nor normative reasons for rejecting refugees, who are eligible for resettlement once the United States determines that their claim of persecution in their home or other country is well-founded,” and cannot interfere with the humanitarian aims of U.S. refugee resettlements; nonetheless, understanding the perceptions of local government officials remains crucial to policymaking. Overall, the authors conclude that local government officials from across the political spectrum are demonstrably receptive to resettling a range of refugee groups, “which offers a timely rejoinder to suspicion toward refugee resettlement prevalent in national U.S. politics.” __ 19


on research by

ALLISON K. HOFFMAN Professor of Law

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In the New England Journal of Medicine, Allison K. Hoffman advocates for “a combination of funding, regulation, and a new strategy that fully supports a range of institutional and noninstitutional care” to address the crisis in nursing homes that has been illuminated by the COVID-19 pandemic. Professor of Medicine at the University of Pennsylvania Perelman School of Medicine and Robert D. Eilers Professor of Health Care Management at the Wharton School Rachel M. Werner and Associate Professor of Medical Ethics and Health Policy at the Perelman School of Medicine Norma B. Coe coauthored the pioneering paper. The authors begin by noting that the nursing home crisis is “the result of decades of neglect of longterm policy.” COVID-19 turned nursing homes into “sitting ducks,” they write, being charged with housing a particularly vulnerable population often with shared living spaces. They lacked the necessary resources to effectively stop the spread of the virus, such as the proper tests and personal protective equipment, while being staffed with “routinely underpaid and undertrained” employees. The authors report that some advocates estimate it will take up to $15 million in federal funding for nursing homes to survive this pandemic. Though the initial congressional pandemic relief packages began to address the funding issue, the authors write, experts are not optimistic that their efforts will suffice.


ALLISON K. HOFFMAN

“[W]e are well past due for comprehensive policies that take the care of aging Americans seriously and fund it accordingly and in a wider range of settings.” Hoffman, Werner, and Coe posit that although major regulatory policies, such as the Federal Nursing Home Reform Act of 1987, have tried to address deficiencies in the long-term care system, COVID-19 has shown that monitoring is not enough. They also stress that “Medicare and Medicaid were never intended to pay for the lion’s share of long-term care,” and in any event, such financing has been declining for decades with occupancy down. Short stays have “all but vanished” in the wake of COVID-19, the authors observe. “In an effort to constrain health care spending,” the authors write, “[discharged] patients are being sent directly home, which puts the squeeze on a critical part of nursing homes’ revenue.” Additionally, Medicare has loosened its restrictions on the use of telehealth visits in the wake of the pandemic; this change has also allowed patients to recover and rehabilitate after hospitalization at home instead of in care facilities. The authors predict this shift “will likely outlast the pandemic,” making it a consideration for long-term care facilities for years to come. Concurrently, they write, thanks in large part to the 1999 U.S. Supreme Court decision in Olmstead v. L.C., which requires care be provided in the least restrictive setting possible, states have also been shifting Medicaid-funded care into patients’ or their families’ own homes and out of nursing homes — despite underfunding care in both settings, according to the authors. “COVID-19 has exposed the cracks in our tenuous system of providing and funding long-term care,” write Hoffman, Werner, and Coe, “and there are no easy fixes. But we believe we are well past due for comprehensive policies that take the care of aging Americans seriously and fund it accordingly and in a wider range of settings.” The authors argue that the instability of nursing homes prepandemic only worsened through the coronavirus crisis and that we need new solutions to how we pay for and provide long-term care.

The authors identify three major areas for change, beginning with substantially increased Medicaid funding for care in all settings, including home-based settings. “An adult child who cares for an aging parent will face losses equivalent to $100,000 a year, on average — roughly the same cost as a nursing home-stay,” they write. Their second proposal calls for better, safe, affordable residential options “because caregiving at home is not feasible for many care recipients and families.” As one model of a community-based alternative to nursing homes, the authors highlight residential facilities such as the Green House Project, which provide care in “small-self-contained, family-style housing with a small number of residents.” Another example, they write, comes from the Dutch’s small-scale “Dementia Village” as well as models that combine child care with long-term care. Finally, the authors advocate for a more coherent financing system to pay for long-term care. The U.S. needs to consider its “piecemeal approach to paying for long-term care,” they write. “More comprehensive funding through existing social insurance programs or stand-alone universal long-term care insurance for the entire population is used in other countries, including Japan, Germany, the Netherlands, Denmark, and France, and could provide a better model that values long-term care.” Overall, the authors conclude that “a combination of funding, regulation, and a new strategy that fully supports a range of institutional and noninstitutional care” is needed. “We are in a moment of crisis for nursing homes,” they conclude. “Now should be a time of reckoning with the fundamental flaws in the organization of long-term care in this country. There are no easy fixes, but we must do better.” __ 21


POLICE QUOTAS on research by

S H AU N O S S E I - OW U S U Presidential Assistant Professor of Law

“When set against the larger context of police corruption, the predatory nature of quotas demonstrates why the practice constitutes bad policy.”

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Shaun Ossei-Owusu’s trailblazing work analyzes the traditionally overlooked legal landscape of police quotas. In “Police Quotas,” published in the NYU Law Review, Ossei-Owusu supplies a nuanced framework “for understanding how police quotas work, how they are defended, and why they are indefensible.” Defining what constitutes a quota is both crucial and complicated, he explains, as quotas exist in various forms across the country. Some quotas are formally mandated; others are informal arrangements in individual police departments. Further, the ways in which the quotas are quantified differ across jurisdictions. Though criminal justice commentators usually focus on numerically quantified quotas, some quotas only use numerical quantities as a “guide.” Quotas often specify certain kinds of law enforcement activities to be quantified; this is commonly arrests, citations, or tickets, but other activities are sometimes included as well. Many police departments offer a range of incentives for fulfilling quotas. Conversely, officers who do not meet quotas may be threatened with “adverse employment actions,” such as “denial of days off, transfers, undesirable assignments, and, of course, termination.” An informed conversation about statutory quota prohibitions is both essential and challenging, cautions Ossei-Owusu. Much of the legislative history of quota prohibition is “scattered” because legislators tend to pass quota prohibitions quietly. Nonetheless, Ossei-Owusu observes that close analysis of quota prohibition statutes “can impose some coherence and highlight themes of public safety, police conditions, and police corruption.” He details the 1975 passage of an early quota prohibition in California, spearheaded by Black Democratic Assemblyman John Miller; the bill, notably, was backed by a multitude of constituents. New York followed, heavily motivated by the desire to root out police corruption. Since then, several states have passed prohibitions in an effort to create better work environments for police, and in recent years, several more states have pushed for prohibitions in response to racial controversies in policing. Like the quotas themselves, prohibitions vary across a number of metrices, explains Ossei-Owusu. Some prohibitions forbid officials from “directly” communicating quotas; other laws cover “indirect” communications as well, and some do not make a distinction. Whereas some statutes specifically prohibit quantified goals, others do not mention numbers at all. The specified law enforcement activities that cannot be subject to quotas vary. Many states include citations, traffic violations, and arrests, and a few include warning notices and investigative stops; some states list which activities are excluded. Lastly, some states explicitly prohibit the use of certain incentives or disincentives to enforce quotas, while others remain silent, opening the door for interpretation as to whether the act is impliedly forbidden or intentionally omitted. Ossei-Owusu acknowledges the number of “socio-legal, doctrinal, and evidentiary hurdles” litigants must surmount to formally challenge police quotas. Citizens who bring claims against quotas often lack the necessary evidence for a court to find in their favor. Though police officers likely have better access to evidence, the “blue wall of silence” habitually prevents many from reporting grievances and bringing legal action. In addition, officers may be further disincentivized from speaking out considering the Supreme Court’s holding that public employees speaking “pursuant to their job duties” lack First Amendment protection from retaliatory action — that is, if a police officer follows official grievance procedures in protest of quotas, they are not protected from subsequent retaliation.


Even with these barriers, there have been successes, observes Ossei-Owusu. Some criminal defendants have persuaded appellate courts to consider evidence of quota influence wherein the trial courts had not, and some police officers have succeeded in bringing claims for quota-exposure retaliation. Markedly, in Martinez v. Village of Mount Prospect, in the U.S. District Court for the Northern District of Illinois, Martinez, a Latinx police trainee, succeeded in bringing a national origin employment discrimination claim against Mount Prospect by demonstrating the police leadership’s directives to target Latinx drivers to meet ticket quotas. The court entered a $1.1 million settlement for Martinez and enjoined Mount Prospect from indicating that officers target people based on their national origin. Though they cannot be understood as an admission of guilt, settlements “provide a provisional glimpse behind the ‘blue wall’ that quotas sometimes operate behind” and “at a bare minimum . . . reveal how much a jurisdiction wants to avoid litigating their public insistence that they do not use quotas.” Among the several settlements Ossei-Owusu describes is one from Los Angeles, wherein officers refused to comply with an illegal 18-ticket-per-shift mandate. Though Los Angeles maintained that the number was a “goal” and not a quota, a jury awarded the officers over $1 million in damages, and, two years later, settled a similar case for $6 million. In another settlement, a Black man from Miami Gardens, Florida led a class of Black and Latinx defendants “arguing that the City’s police department violated their constitutional rights by adhering to a racialized system of quota-based policing that led officers to selectively stop and frisk Black males ages fifteen to thirty”; the case settled for an undisclosed amount. Though many of his examples come from large cities, OsseiOwusu observes that it “would be a mistake to understand quota settlements as a big city phenomenon,” as many smaller jurisdictions have also settled quota-related lawsuits. “Socially, such settlements . . . can lead to the kinds of distrust in police that exists in bigger cities. The crucial difference is that many of these localities are not freighted by the same racial politics of large urban cities,” Ossei-Owusu writes. “The geographical diversity of these settlements highlights how disputes about quota-based policing impact not only racial minorities — the presumed subjects of mass incarceration — but a broader and unassuming public.” Ossei-Owusu introduces and responds to several defenses to police quotas, ultimately demonstrating that police quotas are, on the whole, undesirable. Addressing notions that quotas guard against police idleness, Ossei-Owusu explains that “quotas may produce law enforcement activity, but officers who want to shirk will still find ways to cut corners even when there are quotas in place designed to keep them productive.” In some cases, officers have been exposed for writing false tickets; in other instances, officers operating under quotas have “plant[ed] crack on innocent people, lazily dump[ed] summons on clearly abandoned cars, cite[d] fictitious drivers, and ticket[ed] dead people.” In response to the belief that quotas increase police productivity, Ossei-Owusu explains that productivity measurement “depends on how one envisions the function of police.” Relatedly, and contrary to the point of quota proponents, Ossei-Owusu also explains that quotas are poor evaluative tools, as their arbitrary quantitative goals do little to capture the “qualitative dimensions of policing.”

To those who assert that police quotas may increase revenue generation for municipalities, Ossei-Owusu highlights the many ways that viewing police as money-generators is itself problematic. Though he acknowledges the multitude of beneficial aims policegenerated revenues may fill, he also draws on the research of several scholars who have underscored the ways in which a revenue-oriented policing goals tend to compromise and detract from public safety. An additional objection promulgated largely by police officers criticizes quotas on the ground that they diminish officer discretion and limit the scope of police work. Though quotas might not be “diametrically opposed to public safety,” they effectively “create scenarios where the public safety objective is deprioritized.” Another objection details how quotas exacerbate the welldocumented vulnerability of racial minorities to violent police encounters. Ossei-Owusu relays a number of examples wherein officers attested to targeting Black and Latinx people to fulfill quotas. He also draws parallels to Immigration and Customs Enforcement’s long-standing arrest quotas that disproportionately impact the Latinx community. “Quotas exacerbate social vulnerability and make marginalized groups easy targets for police misconduct,” Ossei-Owusu writes. “When set against the larger context of police corruption, the predatory nature of quotas demonstrates why the practice constitutes bad policy.” Ossei-Owusu seeks to improve existing quota prohibitions and introduce new legislation in jurisdictions that have yet to enact them. Accordingly, he calls for continued scrutiny of police quotas within both legal scholarship and the media. “What does it mean when criminalization is not a product of wrongdoing, but is instead spawned by police attempts to thwart employment sanctions or garner occupational rewards?” OsseiOwusu asks. “On the procedural side, the existence of race-based police quotas has been verified by federal courts, police officers, and sponsors of legislative prohibitions. How can this reality be reconciled with our country’s frail Equal Protection jurisprudence or with an exception-riddled Fourth Amendment that makes satisfying quotas at the expense of minorities fairly straightforward?” In discussing the importance of continued media attention, Ossei-Owusu underscores the importance of journalists probing at not just the high-profile trials, but also day-to-day policing practices, like quotas. A number of both mainstream and criminal justice-specific news outlets have already begun to report on quotas, suggesting that the current moment holds unique potential for journalists to continue to report information and help shape the public narrative surrounding them. In the paper’s Appendix, Ossei-Owusu suggests that a model statute include pension forfeiture as a consequence of statute violation — a measure proposed by police abolitionists and suggested by economists to be linked to lower rates of police misconduct. “Although police quotas have escaped serious in-depth scrutiny, a diverse cross-section of the public rejects their use and believes that criminal sanctions should not be tied to law enforcement statistics or incentives,” Ossei-Owusu concludes. “Moving forward, interim and long-term strategies must confront the reality that, across the country, quotas are a basic feature of policing.” __ 23


Private Company Lies on research by

ELIZABETH POLLMAN

Professor of Law; Co-Director, Institute for Law and Economics

“Although there is some merit to the status quo approach, a stronger case exists for increasing public enforcement and further considering bolder or more finely tuned regulatory change.”

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In “Private Company Lies,” published in the Georgetown Law Journal, Elizabeth Pollman argues that the time has come to examine and address securities fraud in private companies. She writes that although federal anti-fraud catch-all Rule 10b-5 applies to both public and private company securities, the vast majority of case law and scholarship on the issue has focused on public corporations and markets. In her pathbreaking article, Pollman argues for greater regulatory oversight and enforcement “to protect the integrity of the private market and those affected by securities fraud, while carefully avoiding chilling the flow of funding” to startups and other private companies, exploring several mechanisms, including increased Securities and Exchange Commission (SEC) enforcement aided by federal prosecutors and state regulators, giving startup employees additional information, and empowering gatekeepers to play a stronger role in monitoring. Pollman’s article was named among the top 10 corporate and securities articles of 2020 by Corporate Practice Commentator, which releases the yearly list based on peer voting. Last year, Pollman placed two articles in the Top 10: “Corporate Disobedience,” published in the Duke Law Journal, and “Startup Governance,” published in the University of Pennsylvania Law

Review, and her scholarship was previously honored on the Top 10 list in 2017. In this article, Pollman uses the story of Theranos CEOfounder Elizabeth Holmes and her $9 billion company that was “nothing more than a dangerous house of cards” to illustrate the dangers of securities fraud in private companies. Theranos operated in a “high-pressure and secretive environment,” and reporters revealed that the blood-testing technology company had falsified lab records and Holmes allegedly misled the board of directors. An SEC investigation brought on the “spectacular fall” of the company as well as fraud charges against Holmes, but most critically for the purposes of Pollman’s premise, “Theranos rings the alarm bell on securities fraud in the private market.” She writes that although securities fraud in private companies isn’t new, the dramatic growth of the private market and startups staying private longer means that “the zone of impact extends farther and may include retail investors exposed to private companies through mutual and pension funds and employees who hold stakes in private companies through their stock options.” Further “[r]ipple effects reach other stakeholders as well, such as consumers who use a company’s product or services.”


ELIZABETH POLLMAN

Pollman traces the origins of Rule 10b-5 actions’ predominant focus on public corporations to the Great Crash of 1929, which set into motion the creation of the foundational regulatory framework of today, beginning with the Securities Act of 1933 and the Securities Exchange Act of 1934. The 1933 Act prohibited fraud and misrepresentations in the offer or sale of securities, and the 1934 Act, through Section 10(b), allowed the agency to pursue fraud committed in connection with the sale and purchase of securities. “In relevant part, Rule 10b-5 makes it unlawful for any person ‘to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading . . . in connection with the purchase or sale of any security,’” recounts Pollman, adding that federal courts recognized a private right to sue for securities fraud soon after its passage, though the “drawing of the public-private line between corporations and the emergence of the fraud-on-the-market class action that pervades modern Rule 10b-5 litigation” would take decades to develop. “Rule 10b-5 as a tool against securities fraud has been undeniably shaped by the public company paradigm that envisions class action attorneys serving as private monitors of public disclosures affecting stock prices on an efficient market,” writes Pollman. She acknowledges that the “the doctrinal evolution of securities litigation toward a public company model” allows for larger corporate defendants and settlement amounts but argues that it also “significantly narrows the realm of capital markets being actively monitored once one takes into account the rise of the private capital market.” While Rule 10b-5 applies to both public and private company securities, “[t]his state of the world, with Rule 10b-5 actions aimed at public corporations and little regard given to private corporations, sufficed for a time.” Most corporations of significant size were public and exposed to the threat of class action lawsuits and regulators’ scrutiny. This 20th-century model of a dominant public market has changed, however. “Companies have stayed private longer on average and those that go public tend to be larger in size,” writes Pollman. “This means that a significant part of the lifecycle of a growth company typically occurs on the private rather than the public market. . . . Some of the largest private companies by valuation grow in an environment of extreme information asymmetry

and with the pressure, opportunity, and rationalizing culture that can foster misconduct and deception.” Moreover, “the private capital market is now characterized by an unprecedented amount of money and stock transactions” coupled with a “lack of mandated disclosure,” which, Pollman writes, results in a “large and relatively dark market in terms of its potential for securities fraud.” While many private market investors may be “sophisticated” and able to “bear high levels of risk and significant losses from securities fraud,” Pollman maintains, “private company lies can harm a broader range of shareholders and stakeholders as well as the efficiency of allocating billions of dollars for innovation and new business.” Finding that the mechanism of class action suits is unlikely to be broadly used in the private market context as it has in the public, Pollman examines a variety of potential ways to address policing fraud in private markets. “Although there is some merit to the status quo approach, a stronger case exists for increasing public enforcement and further considering bolder or more finely tuned regulatory change,” she writes. Pollman explores increasing SEC enforcement, citing a study of IPOs by Tracy Yue Wang, Andrew Winton, and Xiaoyun Yu, which finds that investor monitoring is less effective at reducing fraud when there is optimism about industry prospects. Pollman accordingly suggests that “as the private capital market grows, the SEC should proportionately scale or otherwise increase its enforcements efforts and remain engaged even during periods of growth and enthusiasm.” Pollman also aligns her findings with the “rising voices pushing for reexamination of the public-private line” and looks toward a discussion of whether “nontraditional players (employees, media, and industry regulators)” may ultimately assume a larger role as private market monitors. To support this observation, Pollman recalls the importance of the employees at Theranos, who reached out to the media, attracting the attention of the SEC and Department of Justice. Trading marketplaces, writes Pollman, could also play a stronger role as gatekeepers. She concludes with a word of caution “to avoid impinging upon the engine of growth and innovation that our private capital market represents,” but that overall, “the potential harm to shareholders and vulnerable stakeholders likely warrants some mix of response that increases oversight, enforcement, and accountability.”

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SOBERING UP AFTER THE SEVENTH INNING: ALCOHOL AND CRIME AROUND THE BALLPARK on research by

J O N AT H A N K L I C K Charles A. Heimbold, Jr. Professor of Law

“For the average game, it appears that the alcohol sales restriction reduces assaults by around 50 percent.”


JONATHAN KLICK

What is the impact of alcohol consumption in a Major League Baseball (MLB) stadium on area level counts of crime? Through a grant from the Law School’s Quattrone Center for the Fair Administration of Justice, Jonathan Klick and University of Pennsylvania Professor of Criminology and Sociology John M. MacDonald studied this question and found that the consumption of alcohol during professional baseball games appears to be a contributor to crime. Moreover, their findings also “provide further support for environmental theories of crime that note the congregation of people in places with excessive alcohol consumption is a generator of violent crime in cities.” In their research, Klick and MacDonald relied “on a novel natural experiment” as the basis of their study — namely that many MLB teams cease selling alcoholic beverages at the end of the seventh inning and baseball is not a timed game. That is, the game duration after the seventh inning can vary greatly depending on how the game progresses. Because of this time difference, the researchers were able to analyze a wide range of time spans during which spectators’ ability to consume alcohol varied as well. They were also able to compare game days with non-game days as well as home vs. away game days. The study focused on the Philadelphia Phillies’ Citizens Bank Park (CBP), which provided an additional unique empirical test with the opening of the Xfinity Live! complex in the stadium parking lot in March 2012; this facility sits about 300 feet from the ballpark gates directly opposite its southwest corner. At this location, spectators could purchase alcohol up until 2 a.m. every night, which, they found, “effectively [undoes] any potential effect of the alcohol sale stoppage in the stadium at the end of the seventh inning.” The researchers obtained incident report-based crime data from the Philadelphia Police Department for the period of 2006-2015 and geocoded the area around CBP as well as popular local sports bars. They used census blocks as the primary geographic unit of analysis, including the census block in which CBP is located as the primary treatment area. Separate analyses looked at a number of other geographic units, including the Philadelphia Police Service Areas. For additional comparison, Klick and MacDonald looked at boundaries of comparable dimensions around 10 popular sports bars in the city. They examined crime in the one-hour period after a game’s last pitch. On non-game days, the time period was 10 p.m. to 11 p.m., approximating the time window after a game would generally otherwise have been played. To measure the amount of time fans are restricted from drinking, public data do not measure the length of time from the end of the 7th inning to the end of the game, so the researchers measured that time period using two proxies: (1) the occurrence of extra innings, which extends the duration of games

substantially, “suggesting that some share of spectators could sober up and reduce the effects of alcohol consumption on crime”; and (2) the number of pitches thrown after the seventh inning, which “is a good proxy for duration, as the correlation coefficient between the duration of a game and total pitches thrown exceeds 0.90, and complete pitch counts by inning are publicly recorded.” Through a series of charts and tables, Klick and MacDonald present their conclusions. “We find that games that are relatively lengthy after the seventh inning and games with extra innings generate lower crime around CBP, as compared to other areas around the city,” the authors write. “For the average game, it appears that the alcohol sales restriction reduces assaults by around 50 percent.” Those effects, Klick and MacDonald note, were concentrated within the first hour after the game. After that, they found little crime reduction and in a relatively small area around the ballpark. They did not find similar effects among a selection of sports bars in the city, which do not have a similar alcohol sales stoppage at the seventh inning. Notably, the effects “largely vanish after the Xfinity Live! complex opened and allowed fans to continue to drink alcohol after the seventh inning in the stadium parking lot, further suggesting the link between the stadium alcohol restrictions and crime is causal.” Moreover, the researchers found “larger effects for nighttime and weekend games when, presumably, people are more inclined to drink excessively.” The study also provided some evidence that when the Phillies win and play a geographically close opponent, the effect is larger as well, though they acknowledge not having “much intuition for these results.” Their findings suggest broader implications regarding sports stadiums, alcohol, and crime, particularly that “sports stadiums are crime generators,” likely exacerbated by alcohol consumption. “Stadiums with alcohol may be then considered one of many episodic crime generators in a city,” the authors write, “much like bars that serve multiple drinks to patrons just before closing and let crowds hang around outside after closing.” The researchers also discuss potential policy implications for curbing violence around MLB stadiums, including more efforts to discourage loitering outside of stadiums at the end of games, possibly through increased police presence at specific locations, as well as the weighing of the social cost of assaults averted versus the cost of loss alcohol sales from the seventh inning on. “Reducing assaults is important,” they conclude, “but it also depends on how much social value society sees from drinking at baseball games.” __ 27


UNCERTAINTY > RISK: LESSONS FOR LEGAL THOUGHT from the INSURANCE RUNOFF MARKET

on research by

TO M BA K E R William Maul Measey Professor of Law

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Tom Baker breaks new ground in his work, published in the Boston College Law Review, addressing the rise of the insurance runoff market, a vastly under-studied sector that focuses on the management of losses that, by definition, cannot be accurately determined. “Despite [the] widespread use of insurance ideas, metaphors, and practices in legal thought, the dominant image of insurance that appears in legal writing is a caricature,” Baker writes, in explaining that legal scholars often rely on idealized notions of insurance that include “fixed-in-advance distribution of determinable risks.” Insurance “runoff” traces its roots back to Lloyd’s, a coffee shop popular among 17th-century merchants. At Lloyd’s, the merchants discussed business and began to organize themselves in such a way that reduced the risks each of them took on in their voyages. “At Lloyd’s, individual merchants agreed to underwrite a share of the risks of a voyage, in return for a share of the insurance premium. They earned their share as soon as they had ‘run’ the risk, meaning that the ship sailed,” Baker writes. “Once the voyage was over and any claims paid, the risk was fully ‘run’ and the potential liability came ‘off’ the portion of the merchant’s ledge book that listed liabilities, with the difference between the premium and any claim payments recorded as profit or loss.” In a process that would come to be known as “reinsurance-to-close,” the underwriters at Lloyd’s also developed relationships with syndicates who would underwrite their risks for one-year periods. After three years, the syndicates would “close” by finding a new syndicate who would either reinsure the risks that had yet to runoff and/or by distributing profits and losses for those that had runoff among its members. The original merchants, who maintained contractual relationships with only the original underwriters, could remain largely oblivious to the additional transactions happening among syndicates. By and large, these practices have survived and grown into what is recognized as the contemporary insurance market. Lloyd’s continued to operate in largely this manner until the 1990s; however, many syndicates faltered on their liabilities when asbestos and environmental claims created mounting property losses in the 1980s. Policies that had been in existence for decades — and thus not seen as large risks — were suddenly significant liabilities. In a multi-billion-dollar 1996 transaction, a new company, Equitas, assumed responsibility for a large swath of Lloyd’s policies. “[T]he newly formed Equitas agreed to receive, process, and pay any claims on the reinsured legacy business, subject only to the terms and conditions of the original insurance policies and without regard to the total costs that Equitas might be obligated to pay,” Baker writes. “In effect, Equitas issued a massive


“It is time for legal thought to update its insurance ideas and metaphors, and its use of insurance practices, to this more realistic understanding of insurance.” reinsurance-to-close policy covering obligations under all policies issued before 1993. . . . The Lloyd’s restructuring separated the legacy business from Lloyd’s ongoing business, improving the syndicates’ ability to continue selling insurance.” Equitas effectively further socialized the losses among the existing Lloyd’s syndicates; the company also “went into runoff at inception.” Importantly, the unique resulting business model had little to no reliance on collecting from the original syndicates. Instead, Equitas represented the newest sector of the insurance market: runoff transactions. In the U.S., a sizable portion of these transactions occur in asbestos, pollution, and health hazard liability-based restructurings. Baker writes that, while “the insurance industry’s asbestos and environmental experience is not over . . . the center of gravity has shifted decidedly toward the runoff specialists, and the share of liability insurers’ reserves represented by asbestos and environmental liabilities is trending steadily down.” In describing the mechanics of insurance transactions specifically as they relate to the runoff market, Baker observes that, due to the difficulties in transferring policies without the consent of the original policyholders, different insurance markets proceed to trade liabilities in different ways. For example, the property casualty sector has its own regulations, as do the life and health insurers; other U.S. runoff market transactions follow procedures similar to Lloyd’s reinsuranceto-close. Baker outlines three main elements of runoff liability transactions — underwriting, policy management, and runoff finance and asset management — that “mak[e] uncertainty tradable.” First, Baker writes that, “underwriting the runoff of a book of insurance policies differs from underwriting the initial sale or prospective reinsurance of insurance policies in both the nature of the information on which the transaction is based and the scale of the transaction.” Runoff transactions have the benefit of both wholesale repricing and hindsight information; risks are easier to estimate because the insurers who sold the policies have had time to see what kinds of liabilities have already occurred. Second, runoff policy management “actively shapes the activities that produce the cash flows that determine whether the predictions underlying runoff transactions come to pass.” Like underwriting, the process of policy management changes based on the type of policy an insurance company is trading. In liability and property insurance runoffs, commutations, or “buy backs” from the perspective of the (re) insurer, demonstrate a crucial difference between runoff and active policy management. Their existence encourages runoff specialists to make deals because commutations reduce the potential uncertainty attached to the transactions. Further, in some policy sectors, commutations serve to better socialize the losses. Baker details how these facts vary among other markets, such as the retail insurance and life insurance sectors. “Because of these differences among insurance market segments, the details of insurance runoff policy management resist

easy generalization,” Baker writes. “The common thread that runs throughout runoff policy management is that intensive exposure to the legacy liabilities of each particular market segment leads to expertise and relationships that have the potential to reduce the costs of running off those liabilities.” In comparison to active insurance companies, runoff finance and asset management function more simply, as runoff companies tend to have fewer expenses. Notably, runoff companies tend to invest in higher risk, higher reward securities for a number of reasons that Baker walks through, ranging from their relative lack of regulation to their private equity backing. In the final section of the article, Baker begins by noting that the process of reconceptualizing insurance policies into the runoff space “happens slowly.” Over time, actuaries track policies that have been sold and analyze aggregate groups of them. The books of policies that are shown to be losing money, or “in runoff,” are shifted to companies who specialize in runoff risks. In chronicling stories from companies’ marketing and claims departments, Baker observes a divergence in roles. Insurance sales teams focus on the insurers’ dependability, claims teams underscore the limits to potential protections, and runoff professionals highlight “legacy liabilities” or “actuarial representations of contingent future payments to an abstract collectivity.” “Runoff transactions unlock value by transferring legacy books of insurance policies to companies that value those books more highly, providing access to capital that the originating insurers can use to expand their core, active insurance business, allowing them to do business and write policies that they want to, thereby increasing the availability of (re)insurance,” Baker writes. “Because runoff specialists administer legacy (re)insurance policies more efficiently, the runoff market lowers the cost, and hence the price, of insurance.” Baker both raises several concerns regarding runoff insurance practices and discusses the industry’s answers to these concerns. For example, though Baker points out that “the runoff specialists’ expertise in . . . managing expenses may mean that policyholders and cedents take larger haircuts from runoff specialists than they would from (re)insurers running off their own risks,” runoff industry actors insist that there is an incentive within the sector to treat policyholders and cedents fairly on existing deals so that the runoff companies can continue to acquire new deals. Baker concludes that the contemporary insurance market navigates uncertainty and absorbs shocks in a much more nuanced and capable way than customary legal thought tends to acknowledge, which renders them also more innovative and resilient. “Perhaps ironically,” Baker writes, “this more realistic understanding of insurance markets may hold the greatest promise within legal thought for scholars whose ideas least take markets into account, because they already have discounted any concerns that adopting their ideas would destabilize insurance markets.” __ 29


on research by

CA RY C O G L I A N E S E Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation

In their article, “Unrules,” published in the Stanford Law Review, Cary Coglianese and co-authors Gabriel Scheffler of the University of Miami School of Law and Daniel Walters of Penn State Law (both former fellows of the Penn Program on Regulation) present their findings from the “first systematic empirical investigation of the hidden world of unrules.” Their findings challenge the widespread perception of the U.S. regulatory system as inflexible and burdensome. By contrast, Coglianese and his co-authors show that federal regulation has tremendous opportunities for flexibility, or what they call “obligation alleviation.” They contend that the concerns “that regulatory burdens have run amok . . . have contributed to both a political dialogue and a set of administrative law principles that today disproportionately aim to protect individuals and businesses from the imposition of regulatory obligations.” With their pathbreaking research and analysis, they aim to “correct the prevailing, myopic understanding of regulatory power and discretion in the United States.” Their work offers systematic evidence that “implies that government regulation is far less onerous — and far more flexible — than previously imagined.” It also provides a “unified framework” for understanding how the government uses unrules to alleviate obligations. “Our empirical analysis leads to a simple but powerful truth: A regulatory system can be understood only as the net effects of both its rules and unrules,” Coglianese and his co-authors write. Using the evocative image of a “block of regulatory Swiss cheese,” they note that, just as with cheese, “the rules have real substance, as they are backed with the force of the state.” The holes, however, “are also constitutive of what a regulatory system means for business and society — and how effective, costly, and fair that system can be.” Coglianese and his co-authors distinguish between two types of unrules: carveouts and dispensations, both of which “can be found within every source and domain of law, including regulations governing health care, securities, environmental protection, transportation, and campaign finance.” Differences in both scope and timing are what distinguish carveouts from dispensations. In terms of scope, “carveouts apply on a categorical basis to any eligible person or entity meeting the criteria or conditions for obligation alleviation,” they write, “while dispensations are granted on a case-by-case basis.”

“Our empirical analysis leads to a simple but powerful truth: A regulatory system can be understood only as the net effects of both its rules and unrules.” __ 30


CARY COGLIANESE

In terms of timing, carveouts are put in place at the time of drafting or amending a legislative or administrative rule, while dispensations come later to grant a special status, making an existing regulatory obligation no longer applicable. Dispensations allow “agencies . . . to lift or limit the scope of a regulatory restriction, for instance through waivers, exemptions, and exceptions.” Coglianese, Scheffler, and Walters cite the “Halliburton loophole” as an example of a major carveout that left out wastes from hydraulic fracturing, or fracking, from standard water pollution regulatory protections. This loophole, which “came into existence when the Energy Policy Act of 2005 added an exemption to the Safe Drinking Water Act of 1974,” did not get adopted about “because hydraulic fracturing fluids had been found in safe drinking water,” but rather the carveout resulted from “lobbying pressure by producers of natural gas.” Coglianese and his co-authors cite a more recent example of a carveout: the exemption of businesses that provided “essential services” from state public-health orders requiring business shutdowns during the COVID-19 pandemic. Dispensations, on the other hand, “do not alter the underlying rule itself, but rather affect whether or how the rule’s obligation applies to a discrete regulatory target.” Recalling again the context of the COVID-19 pandemic, Coglianese and his co-authors cite the FDA’s grants of “‘emergency use authorizations’ related to viral testing, treatments, and vaccines” as an obviously key dispensation. As with these recent FDA waivers, dispensations can be used “in response to unusual circumstances, emergency situations, changed conditions, or new technologies.” Coglianese, Scheffler, and Walters also explain how government agencies effectively create unrules when they decide to “forego enforcement of rules on an across-the-board basis against certain classes of regulated targets or for certain periods of time.” A wellknown example is the Obama Administration’s decision to refrain from enforcing the Controlled Substances Act in states that decriminalized or legalized recreational cannabis. Coglianese and his co-authors acknowledge that these and other kinds of unrules can have positive effects by tailoring the law and conserving government resources. There may also be times, they write, that “full compliance with a rule would be infeasible or disproportionately costly for certain regulated parties.”

As they note, “if a rule is imposed rigidly and uniformly under all circumstances in which it applies, even when the regulated parties attempt in good faith to comply with the rule but are unable to do so fully, it may undermine the regulation’s legitimacy and thereby impede compliance.” But if left unchecked, unrules can also “facilitate undue business influence over the law, weaken regulatory schemes, and even undermine the rule of law,” they caution. Coglianese and his co-authors apply “computational linguistic” analysis to the Federal Register, Code of Federal Regulations, and United States Code to identify the extent of unrules in federal law. Their analysis reveals that “there exists one obligation-alleviating word for approximately every five to six obligation-imposing words in federal law” — a finding that they explain likely underestimates the degree of flexibility in the law because a single obligation-alleviation provision in the law can be used to alleviate multiple obligations. Through their original empirical and legal analysis, Coglianese, Scheffler, and Walters demonstrate both the ubiquity of unrules throughout federal regulatory law and how these obligationalleviating tools operate with much less oversight on regulators’ discretion. Methodically reviewing how administrative law doctrine applies to unrules compared to rules, they show how the law lets agency discretion in the creation and deployment of unrules escape from as much judicial scrutiny and general oversight. “As a result, a major form of agency power remains hidden from view and relatively unencumbered by law,” they conclude. Yet, once the hidden but “central role that unrules play in our regulatory system” is revealed, such as through the empirical findings presented in their research, Coglianese and his co-authors state that it becomes clear that there is a “need to reorient administrative law and incorporate unrules more explicitly into its assumptions, doctrines, and procedures.” Coglianese, Scheffler, and Walters contend that such a “reoriented administrative law would bring unrules out of the shadows and subject them to more robust requirements for transparency.” This “increased attention to unrules,” they write, “ultimately will advance the purposes served by having government subject to the rule of law.” __ 31


WHY

SOCIOLOGY MATTERS TO

RACE AND BIOSOCIAL SCIENCE

on research by

D O R OT H Y E . R O B E R T S George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights

In their essay “Why Sociology Matters to Race and Biosocial Science,” published in the Annual Review of Sociology, Dorothy E. Roberts and University of Washington Assistant Professor of Sociology Oliver Rollins analyze emerging biosocial approaches to social life and challenge how biosocial theories can underscore notions of immutable racial difference and reinforce racial inequities. It is critical, they argue, for sociologists to design — and for scientists to apply — biosocial models that contest biological concepts of race and thus develop a fuller understanding of the ways in which social structures impact relationships between race, biology, and social equity. The Human Genome Project (HGP) showed that humans, regardless of race, are 99.9% genetically the same. Whereas this finding may have held promise to “settle the incessant debate surrounding race and biology,” what it produced instead was the emergence of a new era of genetic-based scientific study of race. In the Postgenomic Era, social scientists tend to emphasize the social forces that determine racial categorization; however, many biological scientists elect to focus on the 0.1% genomic variation and to assume it can be divided by race. Using genetics, biologists have drawn conclusions about the how a person’s race correlates to certain intrinsic qualities, such as their susceptibility to disease and certain health outcomes. Though some analysts have pointed to gene-environment interaction (GEI) models as a blended means of understanding the complicated connections between the biological body and society, the authors denote that “GEI studies are not immune to slippages made between social and biological causes or to understandings of race as innate and immutable.” In discussing how genomics impact the meaning of race, Roberts and Rollins write that “the conceptualization of race in biomedical research is an imprecise and flexible process.” Both before and after the HGP’s publication, scientists have used terms like “race” and “ethnicity” interchangeably and without precise definition; however, following HGP, analysts of genetic studies noted a sharp rise in biological definitions of race, often replacing notions of social construction. Sociologists have discussed the ways in which race is embedded into genetic research, as some geneticists turn to historic understandings of race to rationalize their research findings. Moreover, as the authors point out, new postgenomic technological developments and practices, such as statistical software developed to read genomic information, “do not automatically depart from older racial taxonomies.” “Far from obstructing scientific practices, such plasticity in racial categorizing and racial meanings has helped produce and facilitate scientific authority in the genomic sciences,” the authors write. Some sociologists have embraced genomic racial definitions as a means to challenge and better understand race as a social construction. The practice is the subject of active scholarly debate, as proponents defend their theories as including a more “objective” biological racial definition; opponents raise concerns about gene-based theories’ misunderstanding of race and focus on innate and immutable racial difference. In the growing market of genetic ancestry testing, consumers incorporate the biological results of their DNA tests into their racialized identities. One study found that, among consumers who sought out their genetic ancestry results, white participants tended to more readily “aspire[] to new racial identities . . . in ways that reinforced their racial privilege.” In contrast, another study showed that women who self-identified as African American, Hispanic, Asian American/Pacific Islander, or Alaskan Native, stated, in aggregate, that the results

“[S]ociologists must develop theories, concepts, and methods for understanding the relationship between biology and social inequality that meaningfully contest biological determinism and biological definitions of race and that accentuate social processes, hierarchies, and justice.” __ 32


of their ancestral tests had “no impact” on their racial identities, which were instead shaped by their own personal social experiences. This body of research “suggest[s] that the public’s understandings of genetic ancestry testing are not necessarily provoking new racial identities, but instead are being interpreted unevenly through existing socio-political and personal logics of identity and kinship.” Finally, postgenomic era biological conceptions of race can be seen in immigration polices around the world. In over 20 countries, governments have turned to genetic testing as a means to reunite families separated by immigration laws; many activists have challenged this practice as an unreasonable violation of privacy for minors. Governments have also used these tools to separate and criminalize “fraudulent” families, thus demonstrating that biological notions of race are not only the subject of scientific debate but also have palpable social and political implications for who is able to “‘make demands on the nation.’” The authors write that “biosocial science treats the gene and the brain as dynamic, unfixed determinants of health and social behavior.” In the section on race in the biosocial era, they analyze biosocial neuroscience related to discrimination, health, and educational attainment as well as biosocial conceptions of crime and violence. They begin with W.E.B. Du Bois’s 1899 challenge to racially deterministic conclusions about disease susceptibility. His argument rejected the idea that certain racial groups were innately more vulnerable than others, instead showing that social environmental factors contributed to racially disparate health statistics. More recently, sociologists have designed innovative biosocial models that build upon Du Bois’s ideas by investigating how racism becomes embodied. Their studies have found that some health outcomes — for example, elevated blood pressure and C-reactive protein — correspond to experiences of perceived discrimination and have linked residential segregation to biomarkers of poor health. With neuroimaging, social neuroscientists have been able to study the ways in which racism and bias manifest in the brain. Though proponents hope that this research may help people to understand and change race-based perceptions, the authors underscore that it has several shortcomings; for example, these studies almost always focus on white participants’ bias against African Americans, and it is difficult to distinguish between different discriminatory behaviors. Further, these studies situate the brain — and not structural and systemic elements of our society — as the place wherein to intervene and solve racial discrimination. Roberts and Rollins emphasize the sociologists should insist that biosocial research on the embodiment of discrimination focus on “substantive social, not individualized biological, interventions.” Scientists have expressed mixed feelings about applying biosocial models to studies of race and educational attainment, with many questioning whether such studies can “avoid old pitfalls associated with the study of intelligence and race.” The authors discuss genebased and structural neuroimaging studies wherein scientists also incorporate social and environmental factors into their analyses; nonetheless, the authors conclude that “race-neutral framing of social experiences (e.g., poverty) or social behaviors (e.g., educational attainment or crime) through biosocial research can render the research incapable of fully grasping the complex social effects of race

and racism, and some have noted that race-neutral brain research can obscure the impact of structural racism and discrimination.” The authors write that “[b]iosocial criminology, with few exceptions, treats race as both a biological variable and a semiautonomous predictor of crime.” Though biosocial criminologists often acknowledge the social construction of race, they often simultaneously “maintain that race also has a biological character, which allows them to treat race as a useful predictor of criminal activity.” In contrast, geneticists studying crime tend to apply a “raceneutral” approach. The authors criticize this as well, as race-neutrality “fails to capture the role of structural inequity.” Further, the approach does not meaningfully annul racism because the “already racialized social data, like police reports or arrest records,” on which these studies rely actually serve to incorporate and perpetuate “existing racist social structures and biases.” Because sociologists studying racial inequality use advanced technologies, such as algorithms, to help identify and measure racial disparity, it is crucial to analyze the “social infrastructures that empower racialized technoscientific practices.” The authors, acknowledging the central role that algorithms play in modern life, challenge the views of some scientists who argue that algorithms produce more “objective” and race-neutral decisions than humans. Algorithms have the power to “confirm and amplify racist ideologies.” Even when operating in a purportedly “color-blind” manner, algorithms can “build in existing racial inequalities.” For example, when law enforcement entities enter the already racially inequitable information from arrest records and police reports into their algorithmic databases, the predictions then reflect the racialized and discriminatory practices present in that information; the racialized cycle is perpetuated when the algorithms produce their “objective” predictions as to which neighborhoods are likely to be the sites of future criminal activity. As Roberts and Rollins highlight, “mathematical computation based on uncritical data mining ostensibly sanitizes problematic policing data and helps divert attention from the unjust practices that helped compile the metrics in the first place.” “[A]voiding bias may not be as simple as deracializing data through collaborations between social scientists and technicians alone,” the authors write. “The use of predictive technologies reminds us that the emerging biosocial paradigms exist alongside other, more static representations of biology and identity.” Concluding their review, the authors maintain that biosocial science holds “potential to explore social relationships, processes, and meanings” but caution against its concurrent “ability to obscure ethical uncertainties and structural forces and to reconstitute problematic sociocultural assumptions.” “Rather than cede the study of social inequality to biological approaches, sociologists must continue to develop theories, concepts, and methods for understanding the relationship between biology and social inequality that meaningfully contest biological determinism and biological definitions of race,” they write. “Moreover, instead of automatically assuming that a focus on the social will engender an antiracist or democratic science, sociologists should reinvigorate Du Bois’s vision of antiracism in science that contests unjust social hierarchies and power and centers social processes and justice.” __ 33


FEATURED SCHOLARS

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DAVID S. ABRAMS is a Professor of Law, Business Economics, and Public Policy. He is one of the leading young economists working in empirical law and economics, and his work strives to understand and measure how individuals respond to incentives in various legal contexts. TOM BAKER is the William Maul Measey Professor of Law. He is a highly regarded insurance expert, a leading scholar of insurance law and policy, and a devoted law teacher. His research explores insurance law, institutions, and markets using methods from history, economics, psychology, and sociology. CARY COGLIANESE is the Edward B. Shils Professor of Law and Professor of Political Science and the Founder and Director of the Penn Program on Regulation. He specializes in the study of administrative law and regulatory processes. JACQUES DELISLE is the Stephen A. Cozen Professor of Law and Professor of Political Science. His research and teaching focus on contemporary Chinese law and politics. DeLisle is also the Director for the Study of Contemporary China. JILL E. FISCH is the Saul A. Fox Distinguished Professor of Business Law and a Co-Director of the Institute for Law and Economics. She is an internationally known scholar whose work focuses on the intersection of business and law, including the role of regulation and litigation in the disciplinary power of the capital markets. ALLISON K. HOFFMAN is a Professor of Law. An expert on health care law and policy, she examines some of the most important legal and social issues of our time, including health insurance regulation, the Affordable Care Act, Medicare and retiree healthcare expenses, and long-term care. DAVID A. HOFFMAN is the William A. Schnader Professor of Law and Deputy Dean. He is a widely cited scholar who focuses his research and teaching on contract law. His work is typically interdisciplinary, built through collaboration with co-authors from a variety of fields. HERBERT HOVENKAMP is the James G. Dinan University Professor. He is a Fellow of the American Academy of Arts and Sciences, and in 2008 he won the Justice Department’s John Sherman Award for his lifetime contributions to antitrust law. JONATHAN KLICK is the Charles A. Heimbold, Jr. Professor of Law. His work focuses on identifying the causal effects of laws and regulations on individual behavior using cutting-edge economic tools. Specific topics addressed in his work include the effect of police on crime, addiction as a rational choice, and how liability exposure affects the labor market for physicians. SERENA MAYERI is a Professor of Law and History. Her scholarship focuses on the historical impact of progressive and conservative social movements on legal and constitutional change. Mayeri is also a Core Faculty member in the Program on Gender, Sexuality, and Women’s Studies. STEPHEN J. MORSE is the Ferdinand Wakeman Hubbell Professor of Law. He works on problems of individual responsibility and agency and is also a Professor of Psychology and Law in Psychiatry and the Associate Director of the Center for Neuroscience & Society. SHAUN OSSEI-OWUSU is a Presidential Assistant Professor of Law. He is an interdisciplinary legal scholar with expertise in legal history, criminal law and procedure, civil rights, and the legal profession. His work sits at the intersection of law, history, and sociology, and he also works on stratification in legal education and the legal profession. ELIZABETH POLLMAN is a Professor of Law and Co-Director of the Institute for Law and Economics. She is an expert in business law, and she teaches and writes in the areas of corporate law and governance, as well as startups, venture capital, and entrepreneurship. DOROTHY E. ROBERTS is the George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights. She is an acclaimed scholar of race, gender, and the law and joined Penn as its 14th Penn Integrates Knowledge Professor with joint appointments in the Law School and the Departments of Africana Studies and Sociology. She is the founding director of the Penn Program on Race, Science, and Society. BETH SIMMONS is the Andrea Mitchell University Professor in Law, Political Science and Business Ethics. She is best known for her research on international political economy during the interwar years, policy diffusion globally, and her work demonstrating the influence that international law has on human rights outcomes around the world. KAREN M. TANI L’07, GR’11 is the Seaman Family University Professor. She is a scholar of U.S. legal history, with broad interest in social welfare law, administrative agencies, and the role of rights in the modern American state.

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