Volume 88.3 (May 2021) 531–755

Articles

Rethinking Nudge: An Information-Costs Theory of Default Rules
Oren Bar-Gill - William J. Friedman and Alicia Townsend Friedman Professor of Law and Economics, Harvard Law School.
Omri Ben-Shahar - Leo and Eileen Herzel Professor of Law, Kearney Director of the Coase-Sandor Institute for Law and Economics, The University of Chicago Law School. 

Policy makers and scholars—both lawyers and economists—have long pondered the optimal design of default rules. From the classic works on “mimicking” defaults for contracts and corporations to the modern rush to set “sticky” default rules to promote policies as diverse as organ donation, retirement savings, consumer protection, and data privacy, the optimal design of default rules has featured as a central regulatory challenge. The key element driving the design is opt-out costs—how to minimize them, or, alternatively, how to raise them to make the default sticky. Much of the literature has focused on “mechanical” opt-out costs—the effort people incur to select a nondefault alternative. This focus is too narrow. A more important factor affecting opt-out is information—the knowledge people must acquire to make informed opt-out decisions. But, unlike high mechanical costs, high information costs need not make defaults stickier; they may instead make the defaults “slippery.” This counterintuitive claim is due to the phenomenon of uninformed opt-out, which we identify and characterize. Indeed, the importance of un-informed opt-out requires a reassessment of the conventional wisdom about Nudge and asymmetric or libertarian paternalism. We also show that different defaults provide different incentives to acquire the information necessary for informed opt-out. With the ballooning use of default rules as a policy tool, our information-costs theory provides valuable guidance to policy makers.

Qualified Immunity's Boldest Lie
Joanna C. Schwartz - Professor of Law, UCLA School of Law.

Qualified immunity shields government officials from damages liability—even if they have violated plaintiffs’ constitutional rights—so long as they have not violated “clearly established law.” The Supreme Court has explained that water-shed cases describing legal requirements—like Graham v. Connor and Tennessee v. Garner—are alone insufficient to clearly establish the law. Instead, the plaintiff must find prior cases applying Graham and Garner to cases with facts virtually identical to their own case, explaining that such factually analogous cases are necessary to put officers on notice of the illegality of their conduct. But do officers actually know about the facts and holdings of these cases, and rely on them when taking action? Courts and commentators have been skeptical of this assumption, but it has never been tested.

This Article reports the findings of a study, the first of its kind, examining the role that circuit decisions applying Graham and Garner play in police officers’ policies, trainings, and briefings. Having viewed hundreds of police policies, training outlines, and other briefing materials provided to California law enforcement officers, I describe unequivocal proof that officers are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes. Instead, officers are taught the general principles of Graham and Garner and then are trained to apply those principles in the widely varying circumstances that come their way.

Moreover, even if law enforcement agencies made more of an effort to educate their officers about court decisions analyzing the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would be obviously unrealistic. There could never be sufficient time to train officers about all the court cases that might clearly establish the law. And even if officers were trained about the facts and holdings of some portion of these cases, there is no reason to believe that officers would analogize or distinguish situations rapidly un-folding before them to the court decisions they once studied.

There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts. This Article reveals another reason to reconsider the doctrine and, especially, its requirement that plaintiffs find clearly established law.

Comments

The Misunderstood Role of Reliance in American Pipe Tolling
Jeremy L. Brown - B.S. 2013, University of Pittsburgh; J.D. Candidate 2021, The University of Chicago Law School.

The commencement of a class action tolls statutes of limitations for all members of the putative class. This rule, so simply stated by the Supreme Court in American Pipe & Construction Co. v. Utah, has proved complicated in practice. Since American Pipe, lower courts have disagreed about the circumstances under which the tolling rule applies. Though the Court has resolved many of these disagreements, some uncertainties remain. This Comment takes up two of those questions. First, does tolling benefit plaintiffs who sue while class certification is pending? Second, does tolling benefit plaintiffs who opt out of a certified class? My analysis takes advantage of two recent Supreme Court decisions that clarify the legal basis of a doctrine left untouched for over three decades. These decisions make clear that American Pipe is a creature of courts’ equitable powers. This fact limits when tolling can apply. Most importantly, the judicially crafted tolling rule must respect the statutory intent of the time bar to be tolled. I argue that class action tolling respects the statutory intent of time bars only when plaintiffs claiming tolling have plausibly relied on the class action proceedings. This general rule, applied to the questions considered in this Comment, yields different answers depending on the exact time bars faced by plaintiffs. In general, plaintiffs facing a statute of limitations should benefit from tolling only if they sue after the class is denied certification or otherwise terminates. But plaintiffs facing two time bars—a statute of limitations and a statute of repose—should, in some cases, benefit from tolling even when they file before the certification ruling.

Book Reviews

Organizational Rights in Times of Crisis
Katerina Linos - Professor of Law, University of California, Berkeley, and Co-Director, Miller Center for Global Challenges and the Law. 

As populist leaders gain power around the world, democratic governments retreat, and authoritarian states gain power in the international system,  it is critical to find levers of resistance. Professors Adam Chilton and Mila Versteeg’s masterful volume, How Constitutional Rights Matter, offers a timely and provocative answer: let’s look to organizations as potential defenders of rights in challenging times.  In a world in which human rights are widely understood as individual rights, it is high time to theorize about how organizations can help vindicate these individual protections.

The specific thesis Chilton and Versteeg promote is that “some rights, once constitutionalized, are harder to violate than others.” Specifically, freedom of religion, the right to unionize, and the right to form political parties are more likely to survive challenges.  This is because these rights, which Chilton and Versteeg term “organizational,” have built-in advocates—religious groups, trade unions, and political parties—available to enforce them.  In contrast, “individual” rights—which include both civil rights such as freedom from torture and social rights such as the right to education—have no built-in advocates, and are thus harder to protect.

Chilton and Versteeg test this theory empirically, with data from hundreds of countries over decades. Their data analysis is a model of transparency. For each right, they compare, in easy-to-read figures, countries that have the right to countries that don’t, and then countries before and after adoption. They then present, in figures, more sophisticated, stacked event-study specifications with extensive controls.  This transparent quantitative analysis is supplemented by gripping case studies and an extensive discussion of alternative theories. We learn about President Vladimir Putin’s Russia, President Recep Tayyip Erdogan's Turkey, and recently deposed State Counsellor Aung San Suu Kyi’s Myanmar, and about the (relative) success of some organized groups at protecting core rights where others failed, even under harsh authoritarian rule.

Chilton and Versteeg have generated foundational questions about whether, for instance, it is even possible to classify rights as entailing greater or lesser organizational support. They have also paved the way toward answering, rather than avoiding, fundamental empirical questions when the data, like the real world, is imperfect. In this Book Review, I will first summarize and critique this book on its own terms—as a major theoretical and empirical contribution to the debate on when and how constitutions matter. There are, of course, many ways in which one can debate and question the specifics of Chilton and Versteeg’s theory (and some, but fewer ways, to question their empirics), so it is worth pointing to these.

But at the time of a pandemic, when fundamental liberties are curtailed around the world, the book’s core thesis about the importance of organizations in protecting rights could not be timelier. Around the world, scores of restrictions have been put into place—hundreds of countries, for example, have curtailed freedom of movement.  And other rights have been curtailed through government inaction. The UN Anti-Torture mechanisms, for example, report that tens of thousands of prisoners are known to have contracted COVID-19,  while UNESCO reports that in recent months over 60% of students globally have seen fundamental rights to education curtailed due to school closures.  And the willingness of authoritarian (and democratic) leaders to use the pandemic to expand their powers and implement unrelated laws and restrictions is terrifying. The pandemic offers a hard test of Chilton and Versteeg’s theory that some rights will fare better than others under pressure. It is to this discussion that I devote the last part of this Book Review.

But is it the case, as Chilton and Versteeg’s theory would predict, that some resistance has been possible? Is it the case that one type of rights—organizational rights—has been less compromised than others? This is a hard question to answer, as early on in a pandemic it is hard to know what is temporary and what is here to stay. That said, I believe there are strong indications that Chilton and Versteeg’s theory about the greater resilience of organizational rights is proving prescient. Some organizational rights—notably freedom of religion and the right to unionize, and to a much lesser extent the right to form political parties—seem to be, for now, somewhat less threatened than individual rights, such as the right to free movement or the right to education. In the pages that follow, I first explore how Chilton and Versteeg’s book presents the pre-COVID-19 world. I then present some useful extensions to their theory for a post-COVID-19 universe, full of significant rights restrictions.