Volume 157


The Americans with Disabilities Act (ADA) combats certain forms of social exclusion, which produce second-class citizenship for many millions of Americans. The ADA appears to reflect a judgment that the physical and cognitive impairments that produce "disability" are irrelevant from the moral point of view, in the sense that they result from an accident of nature; people should not be blamed for being blind, deaf, wheelchair bound, or depressed. But because of those impairments, disabled people are excluded from multiple domains, including the workplace. The duty of "reasonable accommodation" is the ADA's statutory response. On this account, the ADA should be regarded as the clearest reflection, in American law, of an anticaste principle—a principle that raises questions about social and legal practices that turn a morally irrelevant difference into a systematic source of social disadvantage.

Of course, the duty of reasonable accommodation is not absolute. As it is now understood, that duty embodies a requirement of cost-benefit analysis, at least in the loose sense that employers are not required to undertake measures whose costs are grossly disproportionate to their benefits. But what are the costs and benefits of accommodation? Perhaps the most significant contribution of Elizabeth Emens's important and imaginative article is the suggestion that thus far, too little attention has been paid to the existence of "third-party benefits"—benefits to those, including able-bodied people, who did not request the accommodation in question. If, for example, an employer is required to accommodate asthmatic workers by providing a smoke-free environment, many nonasthmatic employees will also benefit. Similarly, if an employer is required to purchase lifting equipment that accommodates workers who cannot lift, other workers are likely to gain from the reduced physical strain.

In this brief Response, I want to sketch a tempting objection to Emens's argument—one that she herself recognizes—and then to show that the objection is unconvincing, in a way that helps to illuminate the moral and political foundations of her argument and, indeed, of the ADA itself. In brief, I think that Emens's claims can be seen as being animated by a suggestion that it is not merely crude, but damaging, to divide the world into two "kinds": those who are able-bodied and those who are not. Her emphasis on third-party benefits and her distinction between usage benefits and attitudinal benefits should be taken as an effort to deepen our understanding of the ADA by showing how conventional divisions between "kinds" help to create the very problem that the ADA is intended to eliminate. By recognizing third-party benefits, particularly benefits to those who are not disabled, we can take a significant step toward eliminating those divisions.

The tempting objection to Emens's argument, in a nutshell, is that because the goal of the ADA is to reduce the exclusion—and hence the subordination—of disabled people, an emphasis on third-party benefits is a distraction, and potentially a damaging one.

Integrating Accommodation, by Elizabeth F. Emens, reshapes the framework for evaluating workplace accommodations to assure consideration of their third-party benefits. In an ingenious move, the article extends the contact hypothesis, which conventionally emphasizes the attitudinal benefits of integrating diverse groups, to the impact of integrating the accommodations made so that disabled people can effectively participate in the workplace. The article shows how accommodations benefit third parties by improving their workplace conditions and thus have the potential to change attitudes toward disability, accommodation, and the Americans with Disabilities Act (ADA).

This analysis has obvious implications for theory, doctrine, and practice as it relates to accommodating disabilities. The article also makes several important conceptual moves with broader application to equality theory and practice. The integrative approach developed by Emens resonates with approaches that encourage institutional redesign as a strategy for achieving inclusion and full participation of marginalized groups. This Response will highlight those moves and place them in the context of recent developments in the field. It will also show that Emens has not fully operationalized the functional integration move she proposes and offer a way to more fully realize the aspiration to mainstream the benefits of disability accommodation.

In Integrating Accommodation, Elizabeth Emens commendably scrutinizes what could be called the "positive externalities" of disability accommodation and sharpens the policy choices that their recognition should present. With useful analytic tools, Emens effectively outlines emerging choices that pertain to 1) how much value should be given to the benefits to others from the accommodations; 2) what relative priority should be given to others compared with the initial disabled claimant; and 3) what specific changes in regulatory regimes can and should be pursued to enhance the positive externalities without raising too many costs, whether in terms of costs or competing values. I look forward to the scholarly and policy de-bates that Integrating Accommodation will launch, as well as empirical research about costs and benefits that it should stimulate.

This Response explores how an important source of Emens' analysis also gives rise to a potential obstacle to its implementation. For here, as in her other work, Emens sheds light on disability law by opening for examination the assumption that the "person with a disability" is the only one affected by it or by responses to it. The power of her analysis in Integrating Accommodation depends on what may be an obstacle to acting upon it. Emens shows how the typical legal preoccupation with each individual as distinctive, alone, and unique produces pervasive inattention to relational, iterative, and collective features of social experience. Increased attention to this conceptual issue may be necessary if the kinds of considerations Emens advocates are to appeal to judges, legislators, administrators, employers, school officials, journalists, and even law professors.

Josh Bowers’s article Punishing the Innocent is a terrific contribution to the plea-bargaining literature. Bowers, a former public defender, cuts through many of the misguided assumptions that cloud thinking about plea bargaining. For one, he is absolutely right to refocus attention away from the few violent felonies to the overwhelming number of low-level misdemeanors and violations. The market and shadow-of-trial metaphors have some validity for the highest-stakes cases. For murders, rapes, and terror-ism prosecutions, public monitoring and retributive outrage discipline prosecutors, and the desire to minimize sentences drives defendants. But the market or shadow-of-trial model has little relevance for low-level crimes, for which the desire to get it over with overwhelms the nominal sen-tences. As Malcolm Feeley famously argued, the process is the punishment.

Another valuable contribution of Bowers’s article is to focus attention on recidivists. The spectre that an innocent person like you or me might face mistaken conviction haunts many discussions of the innocence problem. As Bowers notes, this fear is greatly exaggerated. Police are unlikely to target and assume the guilt of citizens with clean records, and the absence of prior convictions makes it easier for law-abiding citizens to speak in their own defense at trial. Moreover, those with clean records have greater incentives to clear their names to avoid criminal records in the first place. But recidivists, as unsavory as they are, are much more likely to be swept up in a dragnet of guilt by association. And because they already have criminal records, they may be much less reluctant to rack up one more conviction even if it is unjustified. This phenomenon may exacerbate existing race and class disparities, as those who are punished once are more likely to be the usual suspects.

Professor Josh Bowers’s article is a breath of fresh air. He exposes the tired, stale arguments of those who are opposed to false guilty pleas—i.e., guilty pleas of factually innocent defendants. He persuades that, to the extent that innocent defendants are harmed by the criminal justice process, it is not the fault of plea bargaining but, rather, failures in other parts of our justice systems, specifically failures at the points of arrest, charge, and the trial itself. In his words, “[t]he inevitable conclusion is that there may well be systemic innocence problems, but they are not problems with plea bargaining.”

I was surprised when I read Bowers’s article to learn that quite a few commentators, and even courts (on state law grounds), have rejected the analysis of the Supreme Court in North Carolina v. Alford. Not a single Justice in 1969 took the position that Alford should be forbidden to plead guilty on the ground that he claimed to be innocent. Justice Brennan’s short dissent did not reach the question of whether the Due Process Clause foreclosed an entry of a conviction based on a plea of guilty accompanied by a claim of innocence. The dissent merely read the record to show that Alford was so gripped by fear of the death penalty that his plea was involuntary.

When we consider human economic behavior, sometimes it helps to speak in broad strokes about “the market,” with all of its buyers and sellers. But at other times, we learn more from thinking about the differences among submarkets. What distinguishes the buyer of a used car from the buyer of a new Lexus? What makes the sellers of cotton different from the sellers of diamonds? As we try to understand behavior in the world of criminal justice, the same distinction applies. Many scholars explore plea negotiations and the administrative nature of our modern criminal justice system, writ large. Only a few look more specifically at submarkets of criminal justice.

The enormous range of penalties at stake in criminal cases, along with the huge organizational differences among the investigators and the attorneys who work in different corners of this system, suggest that the submarkets of criminal justice deserve separate attention. Large city criminal justice operates differently from small city or rural criminal justice; felony courts produce different outcomes from misdemeanor courts; drug trials look different from fraud trials. When thinking about appropriate ways to regulate plea-bargain practices, it would be wise to account for these submarkets.

Start with a very practical, and potentially embarrassing, question: These days, how are you or I—how is anyone—supposed to argue persuasively about constitutional issues of religious freedom? Despite occasional invocations by Justice Souter or Justice Thomas, the “original meaning” of the First Amendment’s religion clauses has long since been left behind in constitutional jurisprudence; it is scarcely an exaggeration to say that the religion clauses as originally understood have effectively been repealed. The modern jurisprudence has instead centered itself on a few basic principles of religious freedom. But these principles—neutrality, voluntarism, separation of church and state—are notoriously indeterminate and manipulable, and they are also often in tension with each other. Unsurprisingly, the case law that has developed does more to ratify than to resolve these contradictory signals and directions.

Professor Nelson Tebbe’s article, Excluding Religion, is a thorough and thoughtful examination by a first-rate young scholar of important and difficult questions: “[W]hether the government may select religious entities for exclusion from its support programs”? If so, when and why? Does such exclusion run afoul of the rule that “government cannot single out particular religious groups for special regulation”? Does it conflict with the equal-treatment and “neutrality” themes that run through many of the Court’s recent First Amendment decisions? Or, do “antiestablishment principles” sometimes permit (even if they do not require) governments to refuse to support religious groups, expression, activities, or symbols? If the answer to this last question is “yes”—and, in Tebbe’s view, it is —then what are the implications of this conclusion for the broader (and alliterative) “question of constitutional theory, namely whether and how it is appropriate for a democracy to influence citizen choice concerning commitments of conscience”?

Excluding Religion should be read by everyone involved or interested in the scholarly conversation about religion, the Constitution, and liberal democracy. The arguments are carefully developed and well executed. Tebbe’s achievement is all the more impressive given that, as he observes, the relevant doctrine is “inconsistent,” the leading precedents certainly seem to “stand in tension with one another,” and the cases under consideration often involve competing values. Tebbe engages—in a careful, sensitive, and provocative way—the premises that underlie, and the aspirations that animate, our commitment to religious freedom under law. This response will reveal some doubts and reservations, but it is nevertheless an appreciation.

Excluding Religion, by Nelson Tebbe, addresses the increasingly important First Amendment question whether government programs that support or benefit private activity may exclude religious activities or institutions. The question whether such exclusions are permissible has emerged as the Supreme Court has increasingly held, most recently on school vouchers, that exclusion is not constitutionally required. Since then, the Court has ruled, in Locke v. Davey, that a state could exclude theology majors from a broadly available college-scholarship program. Tebbe generalizes Davey’s holding, arguing that government should have “considerable latitude to exclude religious activities and actors from its support” and “need not remain neutral toward religion in [such] programs.” The state may fund education or drug rehabilitation by private institutions but withdraw funding when those activities include religious content.

Tebbe accepts that excluding religion “may skew private incentives toward nonreligious activities and messages.” He therefore rejects the theory, advocated by several scholars (myself included), that the Free Exercise and Establishment Clauses together require government to minimize the effect it has on the choices of private individuals and groups in matters of religion. Instead Tebbe sees religious freedom “primarily as a right to liberty or autonomy that is not ordinarily burdened by a governmental decision to selectively deny aid in a way that disincentivizes observance.” He enunciates several exceptions—exclusions of religion may not discriminate among sects, extend to separate non-funded entities, rest on animus toward religion, discriminate by viewpoint in certain public fora, or bar religion from traditional public fora —but he cabins each of these fairly strictly.

In 1970, Professor Leff famously posited that contract law was an impoverished way to think about the documents that accompanied consumer transactions. Although these documents had characteristics that looked like classical contracts and indeed were considered contracts by most everyone, they also had other characteristics that were not like contracts. As Leff explained, “[t]he minute you shift your attention from the common element upon which your classification is based to some other, previously ignored, your classification explodes. Or at least it ought to.” Leff challenged legal scholars to reconceptualize the documents as part of the product itself and suggested that they should perhaps be regulated in the same way as other product attributes.

Leff wrote in an era when an adhesion contract most often would accompany a physical product, such as the warranty that comes with an automobile. With consumer lending, however, the contract does not merely accompany the product—it is the product. Bar-Gill and Warren begin by acknowledging their intellectual debt to Leff and others who have more recently explored how consumer contracts have become products. They then take the analogy to its ultimate logic—if a contract is a product, then it can be unsafe in the same way other products can be unsafe. From such reasoning, the authors’ proposal then easily follows. Financial products should be regulated for safety under the guise of a Financial Products Safety Commission (FPSC), either as a free-standing agency or within an existing agency such as the Federal Trade Commission or the Federal Reserve. The proposal is far from fanciful. A bill to establish such a commission was introduced before the 110th Congress, and such a proposal will be attractive to leaders of the 111th Congress, who will want to report to constituents that they took some action against the reckless consumer lending that is blamed for the current economic woes.

Making Credit Safer is a fascinating collaboration between two scholars of very different bents. Elizabeth Warren’s career rests on decades of careful empirical research, integrated into trenchant policy analysis, and deeply informed by the cultural and social significance of debt. Oren Bar-Gill, by contrast, is a formally trained economist, who is at the start of his academic career, and has gained wide recognition for his successful application of theories of behavioral economics to the products that dominate the modern credit card industry.

The article’s central thesis is difficult to rebut: that the markets for consumer credit products operate so poorly that government intervention is appropriate. The existing regulatory system focuses almost entirely on the soundness of the financial institutions that provide the products; there is no agency charged with protecting the interests of consumers. The article supports the thesis with a comprehensive canvassing of the behavioral economics literature. Thus, it buttresses and expands Bar-Gill’s earlier writing on the subject, in which he argues that market pressures force credit card lenders to design products that take advantage of the hyperbolic discounting tendencies of typical consumers. This suggests, although the authors do not single out credit cards for separate regulatory treatment, a particular need for intervention in the credit card market. Because the products that are most profitable (at least in some segments of the industry) are those that most successfully take advantage of cognitive limitations of consumers, the interests in soundness and in consumer protection are in that context directly opposed.

When does the creation of benefits to some people justify the imposition of harms on others?  This is a central question for public policy.  Despite rhetorical claims of win-win solutions, all policies impose harms on some people, at least in the sense of opportunity harms—forgoing an alternative policy that would provide greater benefits to these individuals.  An increasingly common method for answering this question is to use benefit-cost analysis (BCA) to compare the monetary value of the gains to those who benefit to the monetary value of the losses to those who are harmed.  If the aggregate value of the gains exceeds that of the harms, the policy is said to yield positive net benefits relative to the status quo and to constitute an improvement in social welfare.

The debate that has raged in the legal literature for the last decade about benefit-cost analysis (BCA) in regulatory decision making about the environment has not been very productive for two key reasons:  (1) it has focused on the way that BCA is used in the OIRA review process to “fine tune” regulations just before they are issued, and (2) it has suffered from “selective realism” by discussing the flaws of BCA but not comparing them to the flaws of human decision making unaided by BCA.

John Graham’s 146 page, full-throated defense of BCA brings much needed balance to this debate by answering the critics.  His article is particularly useful for making accessible to lawyers and law students the ethical and philosophical underpinnings of BCA, and also for demonstrating by example that BCA is not inherently anti-regulatory and can be useful for convincing skeptical politicians to sign off on tough environmental regulations.  But, unfortunately, Graham’s article implicitly buys into the two conceptual traps that it inherits from the critics:  both the “fine tuning” and the “selective realism” fallacies.

Adam Cox’s Immigration Law’s Organizing Principles contests the traditional view that immigration law and alienage law—in his terms, “selection rules” and “regulation rules”—are distinct categories with legal and moral salience. Building upon prior scholarship that also called the distinction into question, Cox offers important insights into why this dividing line does not have the sharp conceptual edges that the jurisprudence would suggest exist. Despite the analytical persuasiveness of Cox’s argument, I am not convinced that it will destabilize the entrenched understanding of the dichotomy, at least in the political realm. The relevant and continuing question—for Cox and the rest of us who contest this line drawing—is to discern why the line continues to have such appeal. I want to explore two possible explanations for the tenacity of the categories:(1) the conceptual distinction between the categories that does exist, and (2) the political utility of hewing to the line.

Adam Cox’s recent article, Immigration Law’s Organizing Principles, extends his earlier article’s emphasis on information economics. Like the earlier article, Organizing Principles is a fine paper, although it is flawed in some respects. The basic claim is that the distinction between the government’s selection of new immigrants, which under the plenary power doctrine is largely unconstrained by constitutional rules, and its regulation of immigrants once they are admitted, which is far more legally constrained, shapes the central debates in immigration law. This is a very bold claim, all the more so because Professor Cox is correct that the distinction has indeed been influential in the analysis of many immigration law issues and does collapse to some degree. Nevertheless, the distinction between “immigration” and “immigrant” law is, in fact and in principle, misleading, and perhaps even incoherent, because these two activities actually engender overlapping incentives and effects. Despite this problem, however, his analysis leads to some interesting prescriptions.

I want to thank both Clare Huntington and Peter Schuck for writing such thoughtful replies to my article, Immigration Law's Organizing Principles (Organizing Principles). The article's central argument is that immigration law draws a sharp moral and constitutional distinction between rules that select migrants and rules that regulate migrants out of the selection context, but that in practice this distinction has been incoherent and misleading. Both Schuck and Huntington agree that the conceptual distinction between immigrant-selecting and immigrant-regulating rules is problematic. Yet they both resist my claim that the distinction is used by immigration scholars and the courts in a way that is incoherent. This claim is too strong, both argue, because there is some meaningful distinction between the two types of rules—even if the distinction does "collapse to some degree." To put it simply, they believe that the distinction is imprecise, while I believe that it is incoherent in practice.

Huntington's and Schuck's critiques are extremely productive in the context of a colloquy because I believe their positions reflect widely held sentiments at which my article takes aim. In that sense, their replies confirm my claim that the conceptual distinction has been—and continues to be—a central organizing principle of the field. In this short response, there is not sufficient space for me to rehash Organizing Principles' full explanation of why the stronger claim is correct and why the difference between the stronger claim and the weaker claim of fuzziness is extremely important for the future of immigration law. Instead, I will try to use this short response to show the ways in which Schuck's and Huntington's essays embody some of the same conceptual mistakes that I believe infect the field as a whole. My hope is that, by unpacking the analytic structure of their arguments, I can bring into even clearer focus the precise claim I am making in Organizing Principles.

I wish to express my warm thanks to Professors Stephanos Bibas, George Thomas, and Ron Wright for their thoughtful responses. I am pleased that my article generated such a stimulating exchange with scholars who have done such fine work in the field and from whom I have learned much, not only about substantive and procedural criminal law, but also about the importance of academic generosity and accessibility.

In Punishing the Innocent, I challenge the conventional perception that there is an innocence problem in plea bargaining. For the typical innocent defendant in the typical case (a recidivist facing petty charges), the best resolution is generally a quick plea in exchange for a light bargained-for sentence—an offer that is frequently available because prosecutors do not maximize sentence length in low-stakes cases. Accordingly, once an innocent defendant is arrested and charged wrongfully, the costs of proceeding to an imperfect trial often swamp the costs of pleading to lenient bargains. If there are innocence problems in our criminal justice system, they are problems traceable not to plea bargaining, but to biases that infect arrest, charge, and trial decisions. Because plea bargaining may be in the innocent defendant's manifest best interests, the justice system should ensure that the innocent accused has equal access to bargaining and guilty pleas. Accordingly, I propose systemic reconception of false pleas as ethically accepted legal fictions.

Disputes concerning exclusions of religion have continued to flare up during the last year. A school district in New Jersey was sued for prohibiting devotional religious music in its holiday programs, and six Virginia State Police troopers resigned their voluntary positions as chaplains after the state disallowed denominational prayers at the department's public events. Sometimes, the results of these disputes seemed to be in tension with one another, at least on the surface. While a city was permitted to exclude sectarian legislative prayers, a state was prohibited from limiting a scholarship program to colleges that were not pervasively sectarian. And while one local legislature could restrict opening invocations to monotheistic religions, another was constitutionally barred from allowing only clergy from certain denominations to offer prayers. Although the proper outcomes of these disputes may be unclear, it is beyond doubt that the problem of excluding religion continues to trouble constitutional decision makers.

Excluding religion is the practice of singling out religious actors or entities for special denial of government aid or support. Until not too long ago, many exclusions of religion were required by the Establishment Clause. Over the past decade or so, however, the Supreme Court's antiestablishment jurisprudence has shifted so that today more forms of government support for religious practice are constitutionally permitted. That shift has increasingly presented federal and state governments with the question of whether their support programs ought to include religious practices and institutions, not because of any legal requirement, but simply as a matter of policy. Some have chosen not to extend such support to religious actors on equal terms. Consequently, a distinct legal question has become newly prominent: now that governments are permitted to include sectarian groups in certain support programs, are they constitutionally required to do so?

Public health, safety, and environmental regulation, launched with optimism during the Progressive Era, the New Deal, and the Great Society, survived the deregulatory impulses of the early Reagan years and the Gingrich era. Sometimes called “lifesaving” regulation for short, these rules differ from curative medicine because they do not seek to improve the health of identifiable individuals. Unlike an effort to save a trapped coal miner or a patient dying from kidney disease, administrative law saves lives by reducing small probabilities of premature death, injury, or illness among large numbers of anonymous workers, consumers, travelers, and residents. The names of those whose lives will be saved are unknown when the rule is adopted and may never be known. They are sometimes called “statistical lives.”

Thanks to advances in probability research and statistics, we now know that federal lifesaving regulations do save lives, and there is no basis for believing that these lives are any less real than the lives saved by physicians and nurses in emergency rooms. Although the evaluation literature is not as comprehensive and robust as one would prefer, there is a variety of studies showing that specific federal rules (or combinations of rules) have saved lives, and, in fact, such rules now account for a majority of the major rules issued each year by the U.S. federal government.


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