Articles

Today’s Supreme Court is committed to originalism—the idea that the Constitution’s meaning is fixed at ratification. But it often rests decisions on the post-ratification practices of other actors—Presidents, Congresses, or states. Call this method “living traditionalism”: “traditionalist” because it looks to political traditions, and “living” because the traditions postdate ratification. The method is ubiquitous but undertheorized, in part because its distinctness from “liquidation”—a variant of traditionalism that is indeed consistent with originalism, but that rarely drives any cases—has not been understood.

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which includes scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (in favor of the right later on). Yet the Court is at risk of doing that, making constitutional law turn on accidents of history: whatever practices happened to exist when the Court first addressed an issue. Finally, the Article proposes solutions to this predicament. Where the Court does not simply retreat from living traditionalism, it should write living-traditionalist rulings so that they expire when practices change, or else modify stare decisis to make these cases easier to overturn. These solutions would have to be paired with a resolve on the part of political actors to manifest any rejection of practice-based holdings in ways that courts could heed when the issue next arose in litigation. I review several “hard” and “soft” law means of doing so that the case law itself invests with constitutional significance. By these means, politics could shape sundry individual-rights and separation-of-powers doctrines. Absent such reforms, the Court’s application of living traditionalism will prove increasingly at odds with the democratic and other rationales for using the method at all.

The Supreme Court’s new religious liberty jurisprudence has dramatically expanded the circumstances in which religious objectors can claim exemption from general legislative enactments. Thus far, most of the claimants who’ve taken advantage of these doctrinal innovations have been conservative Christians seeking to avoid liberal policy initiatives (on matters like COVID-19 restrictions, vaccines, or LGBTQ inclusion). This emerging jurisprudence, as well as the rhetoric from legal and political elites regarding religious liberty, has generally acceded to the conflation of religiosity with conservatism. Liberal Jews challenge this conflation, as they offer an example of a religious community whose spiritual commitments tend to align with progressive rather than conservative politics.

Nominally, the new religious liberty doctrine should also provide protections to more liberal Jewish denominations that may seek relief from conservative statutory enactments, such as restrictive abortion laws following Dobbs. Assuming that this outcome is undesirable for conservative legal elites, the question for them becomes how to justify locking liberal Jews out while ensuring conservative Christians remain protected. To this end, jurists may find tempting a modern version of Christian supersessionism—the claimed entitlement of Christians to authoritatively declare who and what truly counts as Jewish. An ascendent form of antisemitism, increasingly mainstream in conservative political circles, insists that authentic Judaism is only that which is compatible with conservative Christian commitments, and so seeks to delegitimize liberal Jews (which is to say, most Jews) as not counting as actual Jews. Where this delegitimization is successful, seemingly blatant exclusion, marginalization, or hatred of (most) Jews can be removed from the ambit of religious liberty or antisemitism, since the targets are not recognized as religious Jews in the first place, and so cannot claim access to the expansive protections given to religious practitioners.

Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on
equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the possibility that courts sometimes award damages in contract disputes.

We argue that the default expectation of equitable relief is a widespread but malleable intuition—and that even a fragile legal intuition has practical consequences, individually and systemically. In a follow-up experiment, we show that subjects are more interested in the prospect of efficient breach when they know
that money damages are a possible remedy. This finding suggests that the mismatch between what people assume the law will do (specific performance) and what it actually does (money damages) sometimes encourages performance. We consider the potential for exploitation of this tendency. Finally, we offer some suggestions about how scholars of law and psychology should elicit folk beliefs about legal rules and remedies.

In 2020, the United States Supreme Court held that the Religious Freedom Restoration Act (RFRA) allows for claims for money damages against federal officials who substantially burden a person’s free exercise rights. As federal courts now grapple with these claims for damages, federal prison officials defending RFRA claims have turned to a trusty and time-honored defense: qualified immunity. In recent years, however, qualified immunity has come under increasing attack from judicial, scholarly, and popular sources, and the rationale underlying qualified immunity doctrine cannot withstand the kind of textual analysis that the Supreme Court used when announcing that the RFRA statute allowed for damages. Using the Supreme Court’s rationale, the text and doctrine of RFRA, and the long-articulated criticisms of qualified immunity, this Article argues that qualified immunity should not be an available defense to statutory claims asserted against federal prison officials.

In formulating this argument, the Article makes three primary contributions. First, it explains the importance of RFRA and its attendant religious rights protections to the more than 150,000 people confined by the federal government in the nation’s prisons. Second, it demonstrates how the defense of qualified immunity is incongruent to the statute’s text, history, and purpose. And, finally, it is the first article to analyze how the qualified immunity defense becomes unworkable when it is applied to the doctrine governing claims brought under the statute. Overall, by focusing on the narrow class of RFRA claims, the Article joins the chorus of commentators urging the federal courts to reconsider the knee-jerk application of qualified immunity to claims involving fundamental rights.

Longstanding U.S. Supreme Court precedents interpreting the Federal Arbitration Act (“FAA”) coupled with more recent corporate law decisions in Delaware have sparked concerns that public corporations may adopt arbitration provisions precluding shareholder lawsuits, particularly securities fraud class actions. In this Article, we show that these concerns are misplaced. It should be trivially easy for courts to conclude that an arbitration provision set forth in a corporate charter or bylaw is unenforceable against public company shareholders. Simply put, it is a matter of equity and the integral role that a state plays in chartering corporations.

Starting first with the corporate law of Delaware, where most public companies are incorporated, we explain that all corporate charter and bylaw provisions must be “twice tested”: they must be both legal and equitable to be enforceable. Applying the twice-tested framework, we then demonstrate that an arbitration provision precluding class actions would be inequitable because it would deny the vast majority of shareholders a remedy for violations of federal securities law, transfer wealth from smaller shareholders to the largest investors, insulate corporate managers and boards from accountability in a manner inconsistent with established state policy, and rupture the balance between federal and state regulation of public corporations.

Turning next to federal law, we demonstrate that Delaware’s ban on shareholder arbitration is not preempted, despite the Supreme Court’s expansive interpretation of the FAA. Here, our analysis starkly departs from prior scholarship. Rather than denying the contractual nature of a corporation’s governing documents, we embrace what the courts have repeatedly stated, that a corporation’s charter and bylaws are a binding contract between the corporation and its shareholders. However, we broaden the aperture to reveal another party to the corporate contract: the state that has chartered the corporation. This insight is critical with regard to interpretation of the FAA. The FAA applies only where there is an agreement to arbitrate, and there can be no such agreement where the chartering state has through its corporate law withheld its assent to arbitration. Thus, without state assent to shareholder arbitration, the essential precondition for application of the FAA is absent.

Observers fear that large corporations have amassed too much political power. The central fact that animates this concern is growing economic concentration—the rise in the market share of a small number of top firms. These firms are thought to use their enhanced economic power to capture the government and undermine democracy by lobbying. Many scholars and activists have urged the use of antitrust law to combat this threat, leading a “political antitrust” movement that advocates explicit incorporation of political considerations into antitrust enforcement. Political antitrust has sparked great debate not only in academic circles but also among policymakers.

But the debate has been largely data-free; there is little systematic evidence on whether increased economic concentration leads to democratic harms in established democracies. This Article seeks to fill that gap, bringing systematic data analysis to bear on the issue for the first time. We make three contributions. First, we create a comprehensive dataset on lobbying of the federal government, capturing nearly one million records over the past two decades. This data was drawn from the reports required by the Lobbying Disclosure Act as compiled by In Song Kim, to which we contributed by refining the coding, improving the matching between lobbying reports and industry and firm data, and adding new data. Second, we use our dataset to map lobbying patterns, focusing on the connection between economics
and politics. Third, we empirically test some postulates of political antitrust.

Our findings do not support the political antitrust movement’s central hypothesis that there is an association between economic concentration and the concentration of lobbying power. We do not find a strong relationship between economic concentration and the concentration of lobbying expenditure at the industry level. Nor do we find a significant difference between top firms’ and other firms’ allocation of additional revenues to lobbying. And we find no evidence that increasing economic concentration has appreciably restricted the ability of smaller players to seek political influence through lobbying. Ultimately, our findings show that the political antitrust movement’s claims are not empirically well-supported in the lobbying context. Our findings do not allay all concerns about transformation of economic power into political power, but they show that such transformation is complex and nuanced, and they counsel caution about reshaping antitrust law in the name of protecting democracy.

Criminal jurors in American courts typically deliver their judgments through “general verdicts,” which announce only their legal conclusions of “guilty” or “not guilty.” An alternative format, the “special verdict,” would require jurors to confirm their findings of fact regarding each element of the applicable law before reaching a conclusion. Courts have long rejected the use of special verdicts in criminal cases, under the presumption that general verdicts better protect criminal defendants and their right to trial by jury. However, this procedural status quo and its underlying rationale have never been empirically examined—until now.

This Article presents the results of an original nationwide survey on criminal verdict format that comprehensively measured the perspectives of over 1,600 stakeholders in the American legal system: state and federal judges, prosecutors, criminal defense attorneys, law professors, criminal science experts, civil litigators, and jury-eligible lay citizens—with former criminal defendants, victims, and jurors also included in the sample. The data reveal that criminal case law’s longstanding position and presumptions on verdict format are strikingly misaligned with the views and intuitions of current legal stakeholders. The majority of stakeholder groups—including criminal defense attorneys and jury-eligible lay citizens—on average supported the use of special criminal verdicts and expected this format to benefit criminal defendants and jurors in various ways. Furthermore, even the only two stakeholder groups that on average supported the legal status quo in favor of general criminal verdicts—prosecutors and judges—did not subscribe to its rationale that special verdicts will disadvantage criminal defendants.

The survey’s findings call the criminal legal system’s status quo on verdict format into question by debunking the conventional wisdom on which it is based. The Article also draws upon the data to consider why the norm in favor of general criminal verdicts nonetheless persists. It concludes by identifying next empirical steps to qualitatively understand and experimentally test the legal and psychological implications of verdict format in criminal cases.

Why buy something for vast sums of money that other people can seemingly have for free? This is one of the puzzles confronting people new to both the art market and the market in Non-Fungible Tokens (“NFTs”). Both soaring markets depend on a stark division between real and fake, original and copy. Yet in a world of increasingly cheap and limitless copying, why do people still pay so much for authentic originals when you can download or 3D-print identical copies? What is the mysterious mechanism that creates value in a world of unfettered mechanical and digital reproduction?

For years, the mechanism was copyright law, which was created to solve the problem of how to monetize works that could be copied. But the art market, presaging the NFT market, long ago cast aside copyright as the mechanism to create value in a world of copies. Both markets instead depend on a non-legal market mechanism—what I call the “norm of authenticity.”

Yet, in this Article I show, through a deep exploration of the art market, that the norm of authenticity, the bedrock of that market, is artificial: protean, often arbitrary, and ultimately a mutually agreed upon fiction. And the importance of understanding artificial authenticity is urgent because it now has migrated from art to govern the market for NFTs.

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into constitutional jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.

The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness and that—but for counsel’s unprofessional errors—there is a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law applies to defense counsel when determining ineffective assistance of counsel claims.

The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. This Article applies a critical lens to examine the historical and racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow-era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.