Author: Glenn Cohen

5

Hertz, Appellate Review, and Sneaky Tricks

You will be forgiven if you did not pay attention to the Supreme Court’s decision in Hertz Corp v. Friend last year — indeed unless you are a Civ Pro junkie, paying attention might be the less foregivable act.  The case resolved a piece of perennial low-hanging fruit on Civ Pro exams as to what is the test under diversity subject matter jurisdiction for the citizenship of a corporation, which turns on where it has its principal place of business. The Court resolved that the “Nerve Center” is the test, ending a circuit split where the “corporate activities/operating assets” and “hybrid” tests were also contenders.

What I am more curious about, though, is whether after the decision any attorneys used the following sneaky trick : If they had lost the case in district court, and diversity jurisdiction was proper on one of the other tests that governed in the Circuit pre-Hertz, but not the nerve center test, did they on appeal ask the Circuit court to vacate the decision for lack of subject matter jurisdiction? If not, were Circuit courts making independent subject matter jurisdiction assessments in light of Hertz and dismissing cases with district court decisions in these circumstances? After all, as that old 1804 chestnut Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (the case that Arthur Miller, who it appears still retains a larger than life grip on his students’ imaginations now that he is at NYU, terrorized us with on Day 1 one of Civ Pro) suggests, Subject Matter Jurisdiction objections can be raised at any time, and the Court has an independent obligation to determine if it has jurisdiction over the case.

Did these post-Hertz dismissals actually materialize? I don’t see why they shouldn’t have.  After all the court did not suggest it was making a new rule for subject matter jurisdiction (it claims this was always the right reading of the statute), nor did it suggest the rule was non-retroactive. I have not seen any discussion of such dismissals, but that just may mean they are off the law professoriate radar, or maybe I am missing something preventing litigators or courts from behaving in the way I suggested? I am curious if others have seen anything like this or have thoughts, I thought this might be a nice way to teach the otherwise somewhat rote rules of diversity jurisdiction to my first-year Civ Pro class this year….

6

Clarifying Commodification

I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.

I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy.  It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.

At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.

(1) Coercion:

(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent.  It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern.  It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns.  Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted.   It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly.  While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.

(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market.  For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.

Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population.  It is only a partial solution because it usually results in shortages.  One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).

(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality.  Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”  Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997).  More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way.  For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.

As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate.  For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.

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1

Hypotheticals, the Classroom, and Moral Biology

Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.

At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab.  In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that].  The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.

As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.

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9

On Whether to Mourn a Dying Language?

People often find  my educational background unusual. I went to a school from K to 11 that taught four languages a day—English, French, Hebrew and most pertinent for this post, Yiddish. I grew up in Montreal, one of what I am now told is 3 pockets of Yiddish speaking still left (New York City and Antwerp being the other two).

This post was prompted by having recently finished Michael Chabon’s wonderful The Yiddish Policemen’s Union, and an interview with him about discovering a book called “Say it In Yiddish” from the 1950s which partially inspired the novel.  Chabon’s book is a hard-boiled detective novel set in a fictional Jewish homeland created in part of Alaska, a possibility it turns out in the real world until scuttled by then-Interior Secretary Harold Ickes.

Reading the book made me wonder if I should mourn the inevitable creeping death of the Yiddish language. I speak Yiddish quite imperfectly, and with the dying of my parents’ generation (my parents themselves only spoke it in drips and drabs), so will most other speakers left alive 30 years from now. There may be some like me who speak it on the side, but outside of some religious communities, it seems unlikely that there will continue to be many conversations in the language going forward.

Is something lost? The death of a language is sad, and the loss of the ability to enjoy Sholem-Aliechem, Peretz and other authors’ work as they were meant to be read is of course some kind of loss. But given how much there is to learn in the universe, and the utility of translation, how much of a loss is it, really? I will always fondly remember reading “Tevye der Milcheker” — Tevye the Milkman — the inspiration for “Fiddler on the Roof” in Yiddish in school, but are the millions who enjoyed the musical or even read the original text in translation missing out on so much to lead me to mourning?

Had you asked me a few months ago, I would have dismissed my misgivings about the slow death of Yiddish as somewhat bourgeois. But reading Chabon’s book, and its historical counterfactual where Yiddish and not Hebrew becomes the language of the resettled Jewish nation, laughing to myself at his witty Yiddish slang neologisms and use of phrases I remember from my childhood, I have started to feel much more truly mournful.  I wonder if others have similar attachments to Yiddish or other languages?  Does the state have a legitimate role to play in trying to help preserve languages as living?  I am curious what others think, but ultimately what keeps coming to mind is a yiddish aphorism I have always liked from my parents — Mentschn Tracht, Un Got Lacht (“Men think/plan, and G-d laughs.”)

2

Using Research Assistants Effectively: In Search of Best Practices

I have been very luck to have a wonderful group of student RAs working for me over the years. I am curious to know, however, whether I am using or selecting them as well as I could. Let me address use first and selection thereafter.

Use: I primarily use my RAs for five kinds of tasks:

(1) Search and Record: Before I write on a subject I’ll task an RA (usually two working separately) to find out what has been written on the subject in legal, medical or philosophical literatures and summarize it in a memo. I’ll usually make these constrained in one way or another to avoid making it like that dreaded law firm memo assignment of find out the law in every state on broad topic X. I will tell them to start by finding what has been written in the last _  years, or what gets cited the most, and/or limiting them to 10 hrs of work.

(2) Footnote follow-up: There may be a smaller point I make in a paper that I want to chase down and ask an RA to find out what is out there. For example, update estimates I have from 1995 about the cost of including coverage for In Vitro Fertilization in health insurance, by seeing if there are more recent estimates.

(3) Typo and grammar check: I am a believer that the more eyes the better in getting out the last few glitches in an article, so I will assign several RAs to pore over the paper at the sentence level when I am close to ready to sending it out.

(4) Shortening: At some point I am so close to my own work that I have trouble cutting out the last two or three thousand words to get it to the right size. I usually have the students try and cut a larger set of words through track changes and then I’ll go back and take only some of them their changes. I’ve had mixed results with this particular task, but that may just be because I am verbose and find cutting so hard.

(5) Course materials prep: When moving to a new edition of my textbook or otherwise changing my course materials I’ll often have an RA take a first crack at updating my syllabus and giving me a report on anything that’s been cut out that I usually teach, as well as altering page numbers.

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1

When Law Reviews Compete, You Win!

Ok that’s actually a rip-off of the gimmicky slogan of “Lending Tree,” but I have been thinking recently (as many do at this time of year) about the law review submission process. In particular, I have been thinking about the expedite element, and why it happens. One answer is that we are all prestige-whores (er..lovers) and that the only thing we value is the rank of the school where the law review is housed.

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of view of the submitting authors” advisedly, because there are many axes on which law reviews differ. Even in my short time as an academic, the reviews I have worked with have varied significantly as to the quality of substantive comments, the likelihood they would stick on timeline, whether they use track changes to make it easy to review their alterations, etc. The problem is that these are all things I have only discovered AFTER working with them.

This is in some ways similar to health care purchasing by an individual consumer – quality is opaque, and gathering the necessary information would be too costly to do on my own (there is a further problem with health care that even when information is available such as report cards for hospitals created by state agencies, as I discuss here, many patients tend to ignore them and/or privilege word of mouth appraisals). Further, there is an additional inter-temporal problem in that each law review’s board (and thus quality) and policies changes on a regular basis such that information becomes stale quite quickly. Even in an institutional-memory-obsessed journal like the Harvard Law Review with a long tradition, there is a period called “transition” when the 2Ls take the reigns and as a body can change many of the facets of the reviews process, including things like the number of stages of editing, etc.

Is this problem intractable? Yes, and no. Law reviews could advertise and contractually commit themselves to particular types of terms as soon as the submission season starts – for example, issues will come out within one month of issue date, to give one example.  (I put to one side other kinds of differentiation – for example accepting longer articles when other journals do not, since that will change at most to whom one submits, and even then most of us are risk-averse enough to be likely to shorten our papers to fall within the guidelines of the larger number of journals). True, it is very very unlikely that any of us would sue a law review over the failure to meet that term of publication date, but even the promise itself might be enough to satisfy us and set up a more desirable norm. Are there enough of these kinds of terms on which journals could compete that would counterbalance the incentive to merely pick the best ranked journals? I am not sure, it seems plausible it might matter within rough journal peer groups, but I would be curious if others have ideas of what kinds of terms they would like to see law reviews compete or converge on? Indeed perhaps some enterprising law review editors may be reading this very blog…

3

Flynn v. Holder, Markets for Bone Marrow, and Abigal Alliance

Over the summer at the annual health law professors’ conference organized by ASLME, I saw a wonderful presentation on Flynn v. Holder from John Robertson, which I think John will be publishing soon. The case is a challenge to the National Organ Transplant Act (NOTA) of 1984’s ban on selling bone marrow filed in the U.S. District Court, Central District of California, and you can view the complaint here.

My main interest in the case is how it will compare to Abigail Alliance v. Eschenbach, a case I helped litigate at the D.C. Circuit en banc stage when I was at the DOJ. Abigail Alliance involved a challenge by terminally ill patients to have access to drugs that had cleared Phase 1 Clinical Testing but had not gone further in the testing process.  There, the plaintiffs succeeded in getting a panel of the D.C. Circuit to to hold that a fundamental right of theirs was being violated by the FDA policy, with a remand for consideration of whether the government could make its showing on strict scrutiny. On rehearing en banc, however, the full D.C. Circuit reversed gears finding no fundamental right (there was no serious argument in the case that the government would not prevail on rational basis review).

In many ways, Flynn is a beautifully set up test case. The primary plaintiff is very sympathetic — a “single mother of five with three daughters who suffer from a deadly bone marrow disease.” Because bone marrow is renewable, and many other renewable “organs” (think sperm and egg) explicitly fall outside of NOTA’s prohibition, there is an air of arbitrariness here. The plaintiffs do not want to buy bone marrow in crass commercial terms, but instead to “create a pilot program that would encourage more bone marrow donations by offering nominal compensation—such as a scholarship or housing allowance.” While I do not think this fact actually allows us to avoid the the corruption form of the anti-commodificationist argument (I may blog more on that topic soon), on a superficial level it does seem to reduce the strength of at least one talking point. The fact that we already tolerate altruistic bone marrow donation suggests that the risk-prevention rationale that was central in Abigail Alliance faces some problems here. Indeed as I , Lori Andrews, and others have argued in the context of reproductive services, in some ways the “coercion” or “exploitation” concerns that are sometimes raised in anti-commodificationist arguments may be more worrisome in the altruistic and familial setting than in arm’s length market arrangements. The case also seems to compare favorably on crowding-out concerns. Although the Abigail Alliance court did not reach the issue (because whether a fundamental right was present dominated the analysis) the government offered a somewhat attenuated crowding out argument: that the availability of experimental drugs outside of clinical trials would reduce the enrollment in clinical trials, and therefore slow either approval of these drugs (and widespread availability) or a demonstration that they were unsafe or ineffective. Though attenuated, this was a concern that many took quite seriously in the run-up and aftermath of the case.  Here, by contrast, I think the crowding out argument is more straightforward and is similar to one that people associate with Richard Titmuss’ work as to blood sale, that adding commercial elements will drive altruistic donation out of the market. To be sure that is an empirical claim, but one that seems less plausible to me than the parallel claim in Abigail Alliance, and I think here again the charitable/foundation approach may blunt some concerns about the transformation of the social meaning of bone marrow donation.

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5

Prop 8, Gays, Homosexuals, and What is In a Name

Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?

I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”

I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.

On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”.  What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion.  Interestingly, both opinions use “homosexual.”

So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”?  Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds?  Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?

11

How to Use An Assistant: In Search of Best Practices

I have a great assistant at Harvard Law School, and I get 1/3 of his time for support. I suspect, however, that I am not using him as effectively as I might, so I want to find out for what tasks other readers use their assistants. I use mine primarily for the following tasks: processing receipts and payments, help with the course website, accepting and returning course papers (which I grade blindly), getting permissions and otherwise producing coursepacks, managing clerkship and other recommendation letters, culling addresses and otherwise arranging the sending out of reprints.

What am I missing? I also would welcome any orthogonal advice or cautionary tales regarding using assistants from the readership….

5

Mechanical Turk, Research Ethics, and Research Assistants

A recent faculty workshop by my witty and brilliant colleague Jonathan Zittrain on “ubiquitous human computing,” (this youtube video captures in a different form what he was talking about ), prompted me to thinking about some ways in which platforms like Amazon’s Mechanical Turk, interface with university research and research ethics in interesting ways.

For those unfamiliar, Mechanical Turk allows you to farm out a variety of small tasks (label this image, enter date of this .pdf to a spreadsheet, take a photo of yourself with the sign “will turk for food,” etc) at a price per unit you set. Millions of anonymous users can then do the task for you and collect the bounty, a form of microwork.

As Jonathan detailed, this raises a host of fascinating issues, but I want to focus on two that are closer to bioethics.

First, I have begun to see some legal academics recruiting populations for experimental work using Mechanical Turk, and there is an emerging literature on the pros and cons of subject recruitment from these populations. Are Mechanical Turkers “research subjects” within the legal (primarily the Common Rule if one receives federal funding) or broader ethical sense of the term? Should they be? Take as a tangible example the implicit bias research of the kind Mahzarin R. Banarji has made famous, and imagine it was done over something like Mechanical Turk. How (if at all) should the anonymity of the subject, the lack of subject-experimenter relationship of any sort, the piecemeal nature of the task, etc, change the way an institutional review board reviews the research? It is a mantra in the research ethics community that informed consent is supposed to be a “process” not a document, but how can that process take place in this anonymous static cyberspace environment?

Second, consider research assistance.

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