Yesterday, in writing a larger piece about the value of “multiprong tests,” I used a word that bothered me so much, I not only had to look up its definition, but also research whether it bothered other legal academics as much. That word is “undertheorized.” Last summer, on Prawfsblog, Paul Horwitz wrote a pretty good piece on what it supposedly means, and how it’s used (and overused) in legal academia. Without addressing what the term does mean, in some positive sense, or what it should mean, in some normative sense, “undertheorized” generally refers to two things: (1) that scholars have not significantly come up with a greater reductive explanation for some phenomena, i.e., that they haven’t developed a theory for something; and (2) that scholars haven’t spend enough time researching something.
What does this have to do with law and the biosciences? I’ll tell you: social security law. Today, it’s one of the backwaters of the legal academy. There are countless, complicated, interesting decisions coming out of district and circuit courts every day. Sadly, almost all of them have the feel that they’re groping around in the dark for a clue. Worse yet, because federal social security appeals aren’t included on the CJRA 6-month reporting schedules, judges have little incentive other than to let them languish on their dockets. At the same time, there are virtually no law review articles to guide them, either summarizing the whole enterprise or attempting to theorize it into some coherent, workable whole. Social security law–specifically supplemental security income (SSI) and disability insurance benefits (DIB)–is undertheorized in both ways.
From a law and bioscience perspective, this is a shame. SSI and DIB decisions touch on lots of fascinating medical, scientific, and legal issues. Are posthumously conceived children “children” for benefits purposes, and what does state law have to say about it? See Astrue v. Capato, 132 S. Ct. 2021 (2012). What’s the difference between a truly profound religious experience and legally disabling insanity? That’s discussed in Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006). Or can improvement from “stem cell therapy” serve as a benefit-denying cure? Mosinski v. Astrue, 484 F. App’x 578 (2d Cir. 2012). These questions all seem to be fertile and yet untilled ground for legal scholarship. So in the “unresearched” sense, these questions, and social security seem “undertheorized.”
But they’re also “undertheorized” in the “lack of a reductive explanation” sense. Besides title 42 of the United States Code, what ties all of these cases together? Is it, like the vast legal landscape of “privacy,” simply that they share an underpinning entitlement? Is it the procedural framework, the famous “five step test”? Is it simply that they’re “biosciency”? Or, does attempting to theorize social security law based on its bioscience component suffer from the “law of the horse” problem?
Perhaps there is a theory to social security law. In fact, I think it’s precisely the type of trouble courts have with social security law that yields at least a rudimentary theory. Many federal judges, I suspect, are turned off by social security cases because they think it requires them to parse hundreds of pages of medical records. They went to law school, not medical school, and the scientific territory is simply too foreign to them.
But the reality is that judges shouldn’t have to review too much of these medical records. The standard of review at the district court level is designed precisely to avoid the sort of scientific questions that famously plague courts: (1) If the Social Security Administration committed a legal error in the analysis, no matter how slight or harmless, the decision goes back to the social security commissioner. But (2) if the Administration committed a factual error, it doesn’t matter–ever–unless it’s not supported by “substantial evidence.” How much is “substantial”? Pretty insubstantial, in fact. As long as it’s enough for a “reasonable mind to accept.” And that, frankly, is almost nothing. If a patient submits 100 doctors’ reports, and 99 claim she is disabled while 1 claims that she’s not, a “reasonable mind” could accept that 1 under a variety of circumstances. (It was from a specialist in the area, it was the most recent, the other 99 reports were authored by quacks, etc.)
We therefore have a system where–at least ideally, if not in practice–standards of review parallel expertise. We trust judges with law, and so much so, that we don’t trust the SSA to even make a harmless legal mistake. At the same time, we trust judges so little with medical records, that we don’t trust them to overturn the SSA’s decision, even when it’s clearly wrong, so long as one “reasonable mind” could accept it.
This standard of review/expertise dichotomy is little more than the theory that what is decided often depends on who’s deciding, an ancient question that pervades so much legal scholarship in the academy. And with that said about bioscience issues in social security law depending on the question of “Who decides?,” it seems about time that someone should.
Jake Sherkow, CLB Fellow