Food justice scholars and advocates have made a simple but important point: for all the attention we pay to the food we eat, we pay far too little attention to the people who feed us. But can law play a role in directing consumer attention to labor-related issues? Traditional food law paradigms provide at best incidental benefits to food workers because these types of laws typically rely on transparency and disclosure schemes that serve narrow consumer-centric interests. An increasing number of laws attempt to disseminate information about the working conditions of the people who pick, process, and produce our food so that consumers can also consider the ethical and moral consequences of their food choices. In assessing this attempt to rebrand labor enforcement in consumer protection terms, this Article does two things. First, this Article identifies the conditions under which such schemes are most likely to succeed. Regulators should target food markets characterized by relative consumer wealth, norm consensus regarding which outcomes are desirable, and an established intermediation infrastructure to give disclosure laws the best chances for improving labor conditions along the food chain. Even where these conditions exist, a second point this Article makes is that disclosure laws should supplement, not supplant, traditional labor enforcement strategies that rely on worker- initiated complaints. This is because certain values, like autonomy, equity, and community standing are best vindicated by the workers themselves instead of by others (like consumers) on their behalf. Crowding out workers from the enforcement process creates the risk of exacerbating the structural forms of inequality that define work across the food system.
Category: 94:5
The Supreme Court Acknowledges Congress’ Authority to Confer Informational Standing in Spokeo, Inc. v. Robins
The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant’s misreporting of a plaintiff’s personal information is sufficient to constitute a “concrete injury” for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries for Article III standing beyond what was considered an injury under the American or English common law. Some commentators had thought Spokeo might overrule the Court’s prior decisions in Akins and Public Citizen, which both held that a plaintiff may have standing based solely upon his statutory right to information. Instead, the Court in Spokeo reaffirmed its informational standing decisions in Akins and Public Citizen.
Wrongly “Identified”: Why an Actual Knowledge Standard Should Govern Health Care Providers’ False Claims Act Obligations to Report and Return Medicare and Medicaid Overpayments
In 2015, Medicare spent $632 billion on health care for America’s elderly (and other covered groups). Medicaid spent another $554 billion to provide health care to America’s needy. The government estimates that improper payments account for as much as 10% of Medicare and Medicaid spending. Given the vast amount of money at stake, and the fact that there is bipartisan support for recovering taxpayer dollars, it is no surprise the federal government has made it a priority to recoup the money lost to health care fraud each year. The results are noticeable: annual recoveries for health care fraud through the federal government’s most powerful anti-fraud weapon, the False Claims Act (FCA or “the Act”), have increased from $932 million in 2000 to a high-water mark of more than $3 billion in 2012. Health care providers now pay millions of dollars to settle allegations that they have committed health care fraud in violation of the FCA. . .
This Note argues for the third approach, namely that overpaid Medicare and Medicaid claims should not be deemed “identified” until a health care provider has actual knowledge of their existence and amount. The Note is organized as follows: Part I introduces the relevant sources of law, including the FCA, the Sixty-Day Rule, and CMS’s regulations implementing the Sixty-Day Rule for Medicare. Part II describes a recent district court decision grappling with the proper interpretation of “identified” in the context of Medicaid overpayments, a situation in which none of CMS’s rules apply. Part III.A discusses how that case might be resolved if it dealt instead with claims under Medicare Part A or B, and thus were subject to CMS’s most recent regulation defining “identified.” Part III.B explains the problems with the existing regulatory scheme established by the FCA and current administrative interpretations of the Sixty-Day Rule. Part IV argues that providers should be required to have actual knowledge of overpayments for overpayments to be “identified.”
Policing Predictive Policing
Predictive policing is sweeping the nation, promising the holy grail of policing—preventing crime before it happens. The technology has far outpaced any legal or political accountability and has largely escaped academic scrutiny. This article examines predictive policing’s evolution with the goal of providing the first practical and theoretical critique of this new policing strategy. Building on insights from scholars who have addressed the rise of risk assessment throughout the criminal justice system, this article provides an analytical framework to police new predictive technologies.
Gatekeepers Gone Wrong: Reforming the Chapter 9 Eligibility Rules
In order to gain access to chapter 9 bankruptcy, municipalities must demonstrate that they meet several eligibility requirements. These requirements were put in place to prevent municipalities from making rash decisions about filing for bankruptcy. Too often, however, these requirements impede municipalities from attaining desperately needed relief. This Article demonstrates that as currently utilized, the chapter 9 eligibility rules overemphasize deterrence and are not rationally connected to the reasons the chapter 9 bankruptcy system was developed. This Article therefore posits that the chapter 9 eligibility requirements should be relaxed.
To support this claim, the Article conducts a detailed analysis of the history and theory of chapter 9 to determine the primary reasons for the eligibility rules and the core functions of a municipal bankruptcy solution. It then demonstrates how many of the concerns driving the eligibility rules’ existence are addressed in other chapter 9 mechanisms and proposes sweeping revisions to the eligibility rules to facilitate appropriate access to chapter 9. Specifically, municipalities in fiscal distress should be able to access bankruptcy when they demonstrate a need for the primary types of assistance that bankruptcy can best provide: nonconsensual debt adjustment, elimination of the holdout creditor problem, and breathing space. Through its analysis, this Article brings needed attention to the broader questions of who should have access to bankruptcy and when that access should be granted.
Hoarders: Clarifying FERC’s Policy, as Articulated in Order No. 888, Against Withholding Electric Transmission Capacity
Adopted in 1998 with the express goal of curbing undue discrimination in the interstate market for electric transmission, Order No. 888 has been referred to as the single largest step taken by the Federal Energy Regulatory Commission (FERC or the Commission) to foster competition in the market for wholesale electric transmission. Among its key features, Order No. 888 requires a utility within FERC’s jurisdiction to separate its transmission function from its wholesale merchant function and to charge separate rates for each of the services. The Order also requires any public utility that “own[s], control[s] or operate[s] transmission facilities which transmit electricity in interstate commerce to file with the FERC open access transmission tariffs.” These open access tariffs cannot be discriminatory or anticompetitive. Rather, the tariffs must “offer third parties access on the same or comparable basis, and under the same or comparable terms and conditions, as the transmission provider’s use of its system.” . . .
Part I provides a brief historical background of the electric utility industry, with an emphasis on significant changes that occurred prior to the adoption of Order No. 888. It segues through the traditional vertically integrated utility model and the concept of natural monopolies to reach the Commission’s fight against what FERC considers the foremost barrier to competition, undue discrimination. In doing so, Part I contextualizes many of the issues raised by this Note. Part II addresses the current need for reform. It begins by arguing that FERC’s hoarding policy, as described in Order No. 888, lacks both clarity and transparency. It contends that with rising mergers and acquisitions activity within the utility industry, FERC should expressly revisit its treatment of hoarding. Part III is concerned with establishing a comprehensive definition for capacity hoarding. Ultimately it defines capacity hoarding as “an electric utility’s retention of transmission capacity when such utility possesses market power or otherwise has an intention to exert market power through its retention of such capacity.” After establishing the definition, Part III concludes by suggesting that FERC adopt a modified use-it-or-lose-it approach to address hoarding.
To Consider or to Use? Citation to Foreign Authority and Legal Aesthetics
In this essay I consider what it means to consider something. More directly, I consider how a judge might distinguish a source used for inspiration from a source used as legal authority. I wonder if Justice Sotomayor posits this line-drawing problem as a koan to would-be clerks. To my limited ken, the epistemological limits of the English language make it impossible to separate these concepts with precision. I argue that we should instead lobby Bluebook editors to create a new signal that can capture a heuristic of citing something for edifying or contextual value. This is not a purely pedantic or indulgent exercise. Rather this solution reflects a core motivation of lawyers and judges who cite to non-authoritative authority–that it is bricolage, ornamental, an aesthetic. We expect legal documents to look a certain way. Perhaps literary icons like First Circuit Judge Bruce Selya can get away with the no-citation opinion. For the rest of us, there must be a reference to something. Whether it is M*A*S*H*, or rapper Biggie Smalls, or your own planted dissent or concurrence from a previous opinion, the reader expects your argument to have a provenance. Signals reify and concretize this visual need for citation, and at the same time congeal ineffable gradations of inference into discrete pictographic symbols with uniform meanings.
I thus present the signal ß–or sharp S–in honor of the alliterative resonance of Justice Sonia Sotomayor’s own name. She first articulated the nicety of this distinction at a 2009 conference in reference to the perennially debated topic of foreign authority in U.S. courts. According to Justice Sotomayor, judges possess the robotic ability to compartmentalize what they read or experience from what they think or feel. They can look at something without letting it inform them. This feels counter to current trends in constructivist theories of education. It also feels contrived.
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