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LawReview

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2021

Ostracism and Democracy

Alex Zhang

The 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.

This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first democracy, Athenians assembled once a year to write down on pottery shards, ostraka, names of prominent figures they wished to exile from their political community. I argue that this desire to banish powerful figures from political participation is, in fact, sign of a well-functioning, legitimate democracy. In particular, ostracism emerges as an effective procedure during an erosion of the perceived legitimacy of one’s political adversaries, and it is grounded in a hope to restore a once-shared commitment to the foundational norms of democratic contest.

Vertical Control

Herbert Hovenkamp

Antitrust litigation often requires courts to consider challenges to vertical “control.” How does a firm injure competition by limiting the behavior of vertically related firms? Competitive injury includes harm to consumers, labor, or other suppliers from reduced output and higher margins.

Historically, antitrust considers this issue by attempting to identify a market that is vertically related to the defendant, and then consider what portion of it is “foreclosed” by the vertical practice. There are better mechanisms for identifying competitive harm, including a more individualized look at how the practice injures the best placed firms or bears directly on a firm’s ability to reduce output and increase its price without losing so many sales that the price increase is unprofitable. This Article discusses these mechanisms.

The Mysterious Market for Post-Settlement Litigant Finance

Ronen Avraham, Lynn A. Baker, Anthony J. Sebok

Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that the availability of these cash advances improves the welfare of consumers, especially those who have no other credit options. This funding made headlines during the recent NFL Concussion litigation, with more than one thousand players reported to have received such cash advances and with class counsel raising concerns of “predatory lending.” Because the industry has not been forthcoming with facts, the larger policy debate thus far has largely relied on anecdotes and speculation. In addition, the debate has ignored the important differences between pre- and post-settlement litigant funding.

This Article is the first to present systematic, large-scale data on consumer post- settlement litigant funding—the type of funding most NFL players reportedly received. We were given unrestricted access to the complete archive of sixteen years of funding applications and funding contracts from one of the largest consumer litigant funding companies in the United States. These data, which are robust and representative, enable us to make transparent the terms and true price to consumers of this formerly mysterious funding. We find that the Funder offers not only clearer contract terms but also better financial terms to post-settlement clients relative to pre-settlement clients. Yet these better terms do not come close to reflecting the virtually nonexistent litigation risk to the Funder. We therefore recommend that consumer post-settlement litigant funding be subject to the same regulations as conventional consumer credit and that a standardized, simple disclosure be required.

EpiPen, Patents, and Life and Death

Jacob S. Sherkow, Patricia J. Zettler

Drug pricing disputes, while significant public health concerns, are not typically immediate life or death matters. But they may be for certain emergency medicines, medicines used for potentially lethal and rapidly onset illnesses or injuries. This is especially true for emergency drug-device combination products, like Mylan’s EpiPen, for which patients can bear a significant brunt of the products’ cost. Scholarly commentary on the controversy surrounding the pricing of Mylan’s EpiPen, however, has largely elided over this relationship among combination products, emergency medicine, and patient payment, often focusing instead on classic issues of antitrust and competition. This brief Essay explores how EpiPen’s pricing capacity is a function of a peculiar intersection of emergency medicine, FDA law and policy, and patents, and suggests areas of further analysis for other drug-device emergency combination products.

Online Symposium

Philando Castile, State Violence, and School Lunch Debt: A Meditation

Abbye Atkinson

This essay reflects on Philando Castile and the work he did to support the children who passed through his school cafeteria. By regularly paying off their school lunch debt, Mr. Castile voluntarily assumed a vital caretaking role that the state refused to accept: namely, supporting food-insecure children and education through debt-free lunch. He kept children safe in this regard, even up to the moment that the state violently stole his life on July 6, 2016. Even as his death is a marker of the continuing, racialized excesses of American policing, Mr. Castile’s life in service to hungry schoolchildren reveals the sometime perversity of the public-private American social provision policy that continues to impose the burdens of financial insecurity on individuals least able to bear them.

The Political Economy of Pandemic Pods

Osamudia R. James

More than a response to a temporary health crisis, the pandemic pods that emerged in the wake of COVID-19’s onset are an illustration of larger problems in American education. Grounded in a broader social architecture of risk in education and contextualized against neoliberal policies inside and outside of education, the rise of pandemic pods was both predictable and inevitable. Needed are interventions that both undercut the inherent inequality of pandemic pods in the short term and reorient the political economy of education such that education stability and equality can be secured in the long term.

Pandemics, Privatization, and the Family

Melissa Murray, Caitlin Millat

From disparities in healthcare quality and coverage to housing and employment insecurity, the COVID-19 pandemic has highlighted existing inequalities in American society.  But critically, the pandemic has also exacerbated these inequalities, particularly those that exist within the family. As work and school activities have shifted from schools and other public sites to the home, and employment has become more precarious, more and more Americans have found themselves struggling to reconcile the demands of the workplace with household responsibilities and their new roles shepherding children through the travails of remote education.

Much has been made of the pandemic’s particular effects on professional women, who have disproportionately assumed the twin burdens of work and caregiving during these extraordinary times. These burdens, coupled with the collapse of service industries in which women are disproportionately employed, have prompted women to leave the workforce in record numbers. The consequences of this exodus of women from the workforce cannot be understated. Indeed, some argue that this “she-cession” will erase decades of hard-won progress for working women, while also exacerbating race and class inequalities.

But speaking of these dynamics solely in the register of economic disruption, gender inequality, and work-family conflict overlooks a crucial player in this landscape: the state. As this Essay argues, not only has the pandemic revealed endemic inequality, it has also highlighted the state’s thin support for caregiving and family responsibilities, as well as the underlying presumption that the family will serve as a means of privatizing care and dependency. It is only in recentering the state, and being clear-eyed about its conscription of the family (and those within it) in the discharge of public functions, that we can be clear-eyed about the inequalities that are produced—and exacerbated—by the privatization of care.

The New Racial Segregation in Education

Ralph Richard Banks

The killing of George Floyd prompted a racial reckoning that quickly extended beyond the issue of police violence, prompting people of all backgrounds to confront the depth and breadth of racial inequality in American society. Education is central to either undermining or sustaining racial hierarchy. For much of American history, Blacks were either denied education or provided a segregated education inferior to that available to whites. The demise of de jure segregation fueled hopes that the expansion of educational opportunity would diminish racial inequalities.

Yet, while the promise of education remains undeniable, some aspects of schooling predictably exacerbate racial disparities. This Essay highlights a paradox at the intersection of education and racial justice: selective schools’ laudable embrace of the principle of academic achievement now constitutes an impediment to educational opportunity for Black Americans in both secondary and higher education alike. When schools evaluate applicants on the basis of their prior academic achievement, the educational system becomes stratified on the basis of student achievement. Achievement segregation disadvantages Black Americans. When racial segregation results from achievement segregation, it may be especially difficult to dislodge, given the importance attached to the idea of academic achievement as a desirable basis for choosing among applicants. Nonetheless, this Essay unsettles the justifications that sustain achievement segregation. Doing so is essential to creating educational settings that are more racially equitable.

Coming to Terms: Using Contract Theory to Understand the Detroit Water Shutoffs

Marissa Jackson Sow

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale—and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily suspended for the duration of the COVID-19 health emergency in March 2020 and that water be restored to homes that had been disconnected from water services.

Human and civil rights activists and health officials have long sought the end of the shutoff campaign for several reasons: It disproportionately impacts Black people, subjects residents to subhuman living conditions and serious health risks, and remains ineffective at redressing the underlying problems that prompted the shutoff in the first place. For attorneys and activists advocating on behalf of Detroiters, pleading violations of civil and human rights laws, however, has proven unavailing in the courts, as well as at the seats of local or state government; even condemnations from the United Nations did not convince the City of Detroit or the State of Michigan to put a permanent end to the water shutoffs, their lack of success and high human cost notwithstanding.

This Essay articulates a radical theory of contract to clarify the relationships between the people of Detroit and the local, state, and federal governmental bodies exercising jurisdiction over them and to explain why the shutoffs persist. A racial contract exists amongst Michigan’s white body politic, which seeks the exploitation of Black people and resources—including Detroit’s water. Performance of the contract requires the dehumanization and exclusion of Black Detroiters in order to establish and maintain a rent-seeking order in which Black people effectively subsidize the delivery of water and sewage services to white suburbanites who view Black governance and Black proprietorship as a breach of the social order for which the suburbanites bargained. The City of Detroit has been able to rely on anti-Black narratives and beliefs to create the mirage of a contractual relationship with Detroit residents that Detroiters have breached; in reality, however, because of the racial contract, Black people lack the capacity to enter into bargained-for agreements with their local government; rather, the City of Detroit and the regional water authority have contracted amongst themselves, treating Black people’s use of water as an externality resolved through taxation.

The Continued Relevance of the Equal Access Theory of Apportionment

J. Colin Bradley

The one person one vote doctrine contains a core ambiguity: Do states need to equalize the voting strength of voters in each district? Or do they need to equalize the total number of people in each district? This difference matters when demographic trends lead to large numbers of noncitizens living in some districts but not others. When that happens, equalizing the total population across districts leads to large differences in the number of voters in each district and differences in the voting power of voters across districts. In 1990 the Ninth Circuit held in Garza v. County of Los Angeles that the First and Fourteenth Amendments together require states to equalize the total population across districts, no matter the distribution of noncitizens and other ineligible voters. But that approach has not caught on, and recently the Supreme Court signaled that it thinks the Garza approach is inconsistent with the leading Supreme Court precedent of Burns v. Richardson, which allowed Hawaii to equalize the number of registered voters rather than the total population across districts. This Essay provides a reading of Burns according to which it holds that the goal of apportionment is to fairly distribute representatives across the to-be-represented population—the group of more or less permanent residents who belong to the political community—and that sometimes the total population reported in the Federal Census is an inaccurate measure of this. Thus, Burns should not stand as an obstacle to a modern acceptance of the Garza approach if the Court is forced to revisit these issues after the 2021 redistricting of state legislatures.

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