Agency Class Actions and Trials By Statistics

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

According to a hearing at the Senate Finance Committee last month, a crisis is brewing at Medicare's Office of Hearings and Appeals (OHMA). OHMA is a small federal agency that hears billing disputes between the federal government and hospitals, doctors, nursing homes, and medical equipment providers. As Medicare has stepped up efforts to recover excess billings, the backlog of cases with OHMA has tripled to more than500,000 in just four years. Worse yet, average wait times have mushroomed from 121 days in 2011 to 603 days in 2015. Even though Medicare is required to make such decisions, by statute, in 90 days, Medicare's workload is now so heavy that it takes OMHA 20 to 24 weeks to even enter new cases into its docket.

In response, OHMA has adopted a fascinating new pilot program that allows medical providers with large numbers of similar billing claims to conduct "trials by statistics." Dubbed the "Statistical Sampling Initiative," a medical provider with more than 250 similar claims would have the option to try a small sampling of those claims before an administrative law judge and extrapolate the average result to the rest. To do so, a hospital, doctor or other medical provider would meet with one of Medicare's "trained and experienced statistical expert[s]" to develop the "appropriate sampling methodology" and randomly select the sample cases to be extrapolated to the whole. Following a pre-hearing conference, all of the pending claims would be consolidated in front of a single Administrative Law Judge to hear all of the sample cases selected by the OMHA statistical expert. The results of the sample cases would then be applied to all of the remaining cases. Although we had nothing to do with this -- Medicare has a long history of using sampling techniques in enforcement actions -- the pilot sounds much like an approach to "trials by statistics" that Michael Sant'Ambrogio and I recommended for agencies in The Agency Class Action, 112 Colum. L. Rev. 1992, 2060-63 (2012).

Michael and I are currently studying aggregate litigation programs, like this, in administrative agencies with the Administrative Conference of the United States. So, we welcome your input, experiences or thoughts about other administrative programs that use similar techniques to resolve lots of cases. Medicare's program is interesting because it differs from the way the Supreme Court, and most of the administrative state, approaches adjudication. Some thoughts about this new pilot program, and other ways agencies use aggregate adjudication, after the jump.

Community Mediation Bill is an Ill-Advised Response

By Professor Mary B. Culbert

This op-ed originally appeared in the Los Angeles Daily Journal.

Community mediation centers help tens of thousands of people across California each year to resolve their conflicts without court involvement - on shoestring budgets. Sara's case at our center is one example. Sara - a person with a disability - had been banned from her favorite local restaurant and was highly distraught after all attempts to resolve the matter were rebuked. She alleged discriminatory mistreatment; the restaurant alleged "stalking."

After speaking with us, the eatery's attorney agreed to mediate. We helped them discuss a series of confrontations, behaviors and reactions on all sides. The end result: ban lifted, communication and relationship repaired, and an agreed upon protocol developed if future issues arise. There were no arrests, no legal cases filed and no social service or police departments involved - classic community mediation.

Extrapolating from Los Angeles County statistics, we estimate that California's 60 community mediation centers serve 100,000 people each year, resolving 40,000 disputes - all made possible by the California Dispute Resolution Programs Act (DRPA) funding.

These efforts are in jeopardy thanks to Assembly Bill 1123, which has the potential to decimate community mediation funding, and place additional strain on our overburdened courts.

AB 1123 permits transfer of community mediation funds and funding decisions from counties to courts. Members of California's mediation community oppose it.

But those most impacted by this bill - community programs and the state agency with oversight authority - were never consulted.

Court oversight of community funds is a conflict of interest. Courts compete with community programs for funding, and are experiencing drastic funding cuts. The risk that court decision-makers would be swayed by their burgeoning caseloads is significant. Courts should not decide who gets what, nor should community mediation money make up for court funding cuts. We need data to show that community mediation services are even being provided in counties that have already turned over decision-making authority - about community mediation money - to the courts, rather than rubber stamp this practice via AB 1123.

A 1989 law review article by Mary Alice Coleman's, co-author of DRPA, describes the law's intent: "After a 10-year legislative struggle, the ...Act of 1986...is now paving the way for a system of community dispute resolution programs throughout California..., revenues to fund local, non-court dispute resolution program... [and] statewide implementation... by the State ...and individual county governments." (Citations omitted).

A loss of community services would disproportionately impact disenfranchised communities with no access to the justice system due to language or financial barriers - especially minorities, persons of color, seniors, persons with disabilities and veterans.

Los Angeles County's Dispute Resolution Program reports that its DRPA funded agencies (one-fifth of the total number of DRPA funded programs statewide) are serving nearly 20,000 people a year and reaching the law's intended beneficiaries:

• 0.7 percent self-identified their as American Indian/Native American
• 7.9 percent self-identified as Asian/Pacific Islander
• 24.3 percent self-identified as Black/African-American
• 40.7 percent self-identified as Hispanic/Latino
• 19.9 percent self-identified as White
• 2.6 percent self-identified as Multiple Ethnicities
• 4.0 percent self-identified as Other
• 43.0 percent self-identified their annual income as less than or equal to $20,000
• 29.9 percent self-identified their annual income as $20,001-$30,000
• 11.1 percent self-identified their annual income as $30,001-$50,000
• And 16.0 percent self-identified their annual income as greater than or equal to $50,001

DRPA money is being utilized to serve its intended beneficiaries - not the wealthy, or to pay private mediators. Any changes to DRPA should strengthen and clarify the goal of serving its intended beneficiaries - not set up a scheme that could weaken and ultimately decimate dispute resolution funds for California's indigent and disenfranchised communities.

Police, courts and community agencies will be further inundated with conflicts if AB 1123 passes. Turning a community mediation funding law in to a law that primarily funds court mediation is an ill-advised response to the court funding crisis. The loss of community peace-building services far exceeds the possible short-term relief in court caseloads.

We welcome discussions about helping the courts to fund court mediation - but not at the expense of community mediation services. There are win/win solutions, but AB 1123 is not one of them.

Erasing Adolescence

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.


One of the urban legends of childhood is that individuals get a clean slate when they turn 18. Of course, like many urban legends, it's not entirely false. Policies linked to a clean slate include a separate juvenile court that offers enhanced confidentiality, including sealed records. The unsuccessful litigation by a blogger and the St. Louis Post-Dispatch to force the disclosure of Michael Brown's juvenile records (if there were any) in the wake of his shooting by Ferguson Police Officer Darren Wilson demonstrated that, even in a world where criminal records are increasingly available to anyone, we still strive to protect individuals from the disclosure of their youthful mistakes.

Of course, it was never true in the past that individuals got a clean slate at 18, and is decidedly not true today. I cataloged all the many ways that law enforcement and the criminal justice system database delinquency here (discussing policies like juvenile sex offender registration, gang databases, DNA collection from juveniles, and schools as informants for law enforcement). Moreover, because nearly everyone carries pocket-sized cameras and video-recorders around, adolescence will more publicly haunt the young people of today than any other prior group. But it's not just recorded behavior that lives on. Thanks to Facebook and other social media, young people say cringe-inducing things that either seemed like a good or funny thing to say at the time, or that don't reflect their beliefs as they mature and learn more about the world.

To minimize the downside of recorded adolescence, California passed a law (SB 568) in late 2013 that came to be called the online "Eraser Button." The law requires operators of websites, online services, or apps to permit a minor to remove, or to request and obtain removal of, content or information posted online. In short, it allows those under 18 to scrub the internet of embarrassing videos and pictures of themselves, or unsavory posts.

Some think there’s no need for such a law, or that it is pointless. It is true that most websites already have a delete button. At the same time, it can be quite difficult to delete content from the internet once it is posted there by someone. Photos spread virally, and the wayback machine has already saved, according to its website, 456 billion web pages. But I'm less interested in the technical efficacy of the eraser button (though it can't be ignored when considering such policies). Instead, I'm interested in whether the ability to erase adolescence in a world devoted to record-keeping is good or even necessary.

I think it most definitely is. As I said above, it’s both an old idea to offer youth a fresh start as they enter adulthood, unburdened by the mistakes of their youth, and a pressing issue today. In fact, the Court of Justice of the European Union issued a ruling in 2014 that, under certain conditions, provides individuals with a right to have search engines like Google remove links with personal information about them. It's been dubbed the right to be forgotten.

I'm no privacy scholar, but a right to be forgotten strikes me as facing a steeply uphill road in the United States for a number of reasons. But as the Supreme Court has made abundantly clear in recent criminal cases, children are different, and the law must account for their differences. There is nothing about cases like Roper and Graham and Miller that necessarily limit them to criminal law and procedure. The long familiar and important notion that we should regulate the lives of young people more protectively than we regulate the lives of adults supports the notion that youth have a stronger claim to the right to be forgotten than adults. But it’s more than the historical commitment to greater (but not absolute) confidentiality for youthful mistakes. I sense there's a broad recognition that the super-charged informational accountability imposed by the internet exceeds the appropriate amount of accountability for young people, even for things that people willingly post to the internet themselves (thus, the Eraser Button law in California).

25 year-old Adolescents

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.

Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?

Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later. They’re living with parents longer.

As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. Just the other day, the defense lawyer in the Aaron Hernandez murder trial in Boston referred to his client as a “23 year-old kid.” As jarring as this way seem to read or hear, it’s supported by leading psychologists like Steingberg. (Prominent psychologist Jeffrey Jensen Arnett alternatively talks about “Emerging Adulthood”, by which he means ages 18-25). In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).

There isn’t space in a blog post to debate the length of adolescence. In any event, it’s almost universally accepted that full development/maturity doesn't come until the early to mid-twenties. I’m interested in thinking about the implications of the law recognizing a long adolescence, which is decidedly not widely embraced.

First off, it would not mean that all the rights and responsibilities of adulthood are withheld until a person reached 25 or 21 or 18. Whether adolescents require distinct rules depends on how they are different. In turns out that they are different from children and adults in different ways at different ages. For example, by 16, most youth are close to adults in their ability to reason and process information, but they’re bad at deploying those skills when in groups of other teens or stressful situations, in part because they’re more interested in risk and less concerned with long-term consequences. That means that someone who can capably recognize right from wrong may nevertheless be less culpable for their actions than adults.

Indeed, some of the rules governing adolescents would overlap with those for children, and others would overlap with those for adults, depending on what was being regulated. This is, in many ways, the world we have. Young people can’t drive until 16, vote until 18, or drink until 21. But we also seem to allocate rights and responsibilities poorly. A 16 year-old can dangerously drive a car on our highways, and can be tried in adult court for his actions, but is not considered mature enough to handle R-rated movies unless watching with a parent. Paying more attention to how adolescents are different from children and adults would allow us to do a better job of assigning rights and responsibilities to adolescents.

I’ve thought most about the change that a long adolescence would bring to the law with regard to juveniles and criminal law. A long legal adolescence could mean an expanded juvenile court jurisdiction. In most states, jurisdiction ends at 18, though North Carolina and New York send everyone 16 and over to adult criminal court. In a world where adolescence lasts until 25, and where what distinguishes adolescents from adults involves decision-making capacities and attributes that make them less culpable for their acts, we might need to significantly expand juvenile court jurisdiction (or, as Barry Feld argues, provide for a youth discount at sentencing for those processed in criminal court). Similarly, 4th and 5th amendment jurisprudence, and the ability to consent to waiving those rights, probably needs to better account for the age of the person protected by and purportedly waiving those rights.

There are undoubtedly implications of a long legal adolescence in fields like torts, contracts, autonomy rights (including health, speech), family law and the strength and duration of parental rights, and more, but I don’t know them well enough to lay them out. If anyone is willing to indulge me and teach me, how might a long adolescence change the landscape in your field of expertise?

Perceiving Adolescence

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.


The challenge of demarcating adolescence from childhood and adulthood comes mainly from figuring out when it ends. 18 has been the traditional end point, but many experts increasingly view adolescence as a period that lasts into the mid-twenties. But extending adolescence beyond 18 is probably less pressing than ensuring that those under 18 receive the protections long reserved for childhood (or adolescence, or “not yet adulthood”).

Advocates have been fighting that fight for decades, and the flourishing of knowledge about adolescent brain developmental and psychosocial research on youth has armed reformers with empirical findings that seemed to have aided their efforts. For example, after upholding the death penalty for 16 and 17 year olds in 1989, the Supreme Court reversed course in 2005 in Roper, striking down the death penalty for those who committed crimes under 18. In Roper, as well as the juvenile justice decisions to follow (Graham, J.D.B., and Miller), the empirics of adolescence played a prominent role. Spurred by these findings, the Supreme Court has repeatedly averred that the law cannot proceed against youth “as though they were not children.”

This has appeal, and works, as a general proposition. But as I’ve noted before, perceptions matter. And there is evidence that some youth are not seen, despite their age, as youth, and thus lose the protections of childhood. This happens in 2 primary ways: (1) racial perceptions, by which minority youth are seen as older than their actual age, and more culpable for their acts, and (2) the forfeiture theory, by which youth who break the law are seen as having forfeited the protections that childhood typically offers.

This post focuses on the link between race, perceptions, and childhood, turning again to psychological studies. UCLA Psychology Professor Phillip Atiba Goff and colleagues tested 176 police officers in large urban areas, mostly white males, average age 37, and 264 mostly white, female undergraduate students from large public U.S. universities, to determine their levels of certain types of bias. They found that, beginning around age 10, Black youth are seen as older than their actual age, and more culpable for the same behavior as same-aged White youth. The age gap was not small: the study found that Black youth were more likely to be mistaken as older than their actual age by an average of 4.5 years. That means that the study participants saw a 14 year-old Black youth as 18-19 years old.

Thus, wherever the line is drawn between childhood and adolescence and adulthood, there’s a good chance that black male youth exit childhood and adolescence sooner, and thus lose the dispensations granted to children much sooner than others. This, I argue in a forthcoming paper called Databasing Delinquency, about the unprecedented adult-like data collection and retention and distribution practices that youth are subjected to these days by the criminal justice system (sex offender registration, gang databases, DNA databases, and more), generates support or tolerance for increased adult-like surveillance and more punitive, adult-like responses to rule-breaking behavior by minority youth.

We can see how this research might undermine the Supreme Court’s strong declarations that childhood cannot be ignored when thinking about the J.D.B. decision. J.D.B. says that police must account for age in determining whether an individual is in custody (and thus must be given Miranda warnings) because youth are much more likely to feel like they’re not free to leave encounters with police than adults. However, J.D.B. says that police must account for age only when “the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer.” This is easy in the school setting in which J.D.B. arose – unless police are interrogating staff, they are dealing with someone who is not an adult.

But outside the school setting, the skewed perceptions of the age of minority youth could easily lead many police officers to conclude (as those in the Goff study did) that a 15 year-old Black kid is a 19 year old adult. They will then treat the youth as they would an adult, claiming as they did in many cases I litigated in practice that the youth was free to leave the encounter but choose to stay and keep talking. As a consequence, the aim of the J.D.B. court (to get law enforcement to issue Miranda warnings to more youth) will not come to pass.

This research suggests that the Court got the standard wrong in J.D.B. – rather than making the apparent age a critical factor, the Court could have, and should have, said that police must ask the person’s age, and if they determine or are told it’s 17 or under, they must consider youth in determining custody, and issue Miranda warnings before proceeding with custodial questioning. This should be so even if the officer believes the person looks like an adult. Even if the person is actually lying, and is really 19 or 21, there can be little harm in communicating to an adolescent that he has the Constitutional right to remain silent.

Defining Childhood

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.

A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries.

The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults. But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?

ADA at 25, Chicago style

By Professor Michael Waterstone

Prof. Waterstone is guest blogging on Prawfsblawg, where this post originally appeared.

On Friday, I had the good fortune of attending the kick off event for ADA25Chicago. There are a lot of celebratory events and academic conferences planned this year commemorating the 25th anniversary of the ADA, but this was different. It brought together politicians (including Dick Durbin and Tammy Duckworth), corporate figures (including the President/COO of Motorola, where the event was held), and civic leaders (including representatives of the Chicago Community Trust), as well as state and local government. These individuals did not just give speeches, but expressly set the stage for actual commitments.

The organizers had already gathered pledges from Chicago civic organizations and employers to establish programs to advance opportunities for people with disabilities, to create programs within six months throughout the region to increase civic engagement around disability issues, and to develop lasting “legacy projects” around the key themes of employment, education, and community living for people with disabilities. ADA25Chicago has already planned a visible presence sponsoring events at Chicago’s many summertime festivals and cultural events (disability awareness, good food, and craft beer? Count me in!). And there are specific plans in place to hold these groups publicly accountable for their commitments.

I posted earlier about the disconnect between how those inside and outside the disability rights community view disability issues. ADA25Chicago is one of the most sophisticated efforts I have ever seen to address that gap. By gathering elites, and creating a plan to mobilize and hold their feet to the fire on accountability, this was a really exciting beginning. I really look forward to watching how this all unfolds.