Articles

The impediments to property acquisition and market success among African Americans are a significant area of inquiry in legal scholarship. The prevailing narrative on the historical relationship between Blacks and property is overwhelmingly focused on loss. However, in the political science, economics, and sociology literatures there is a countervailing narrative of successful property acquisition and retention among what might be termed a “market dominant” subset of migrant Blacks. The most successful subset of Black property owners in the United States today are descendants of Black migrants who were enslaved outside the United States. These free Black migrants, overwhelmingly British subjects originating from the West Indies, are largely invisible in the legal scholarship. Questions have arisen in other disciplines about what differentiated this subset of Black people. Why was their experience of property ownership so different?

Debates in the sociology, political economy, and political science literature have often focused on what Francis Fukuyama has controversially termed “cultural questions,” namely, the view that early West Indian migrants—like Korean or Japanese migrants—possessed a particular set of cultural traits that were distinctly well suited to asset acquisition. This Article focuses on a far more prosaic rationale, contending that the success of West Indian migrants may be rooted in the early grant of what I term “de facto property and contract rights” to West Indian slaves, which allowed their freedmen descendants to become the largest independent Black peasantry in the Americas. Between 1880 and 1924, U.S. immigration officials may have inadvertently selected for propertied migrant “types” when admitting immigrants. Through their own historical exposure to property and contract rights frameworks in the West Indies, as well as internal communal networks which supported informal banking schemes, these Blacks were particularly well placed to take advantage of opportunities for home and business ownership upon arrival in the United States.

The broader point is that there is a glaring omission amidst the “cultural” controversy: What about law? I use the term “law” in this context as it is used by many proponents of new institutional economics, as a proxy for an institutional frame- work that supports property acquisition, regardless of whether this framework is formal (state-supported) or customary. Moreover, the law and economics scholar- ship has focused extensively on institutional frameworks that allow certain religious and ethnic groups to dominate particular sectors, such as Orthodox Jews in the diamond industry or Koreans in the grocery sector. The insights of this literature allow us to interrogate whether Black West Indians had early access to institutions that facilitated contracting and property ownership and if so, whether this institutional history might contribute to their long-term asset acquisition patterns. The question necessarily arises: Why would we think of Black migrants any differently from the way we think of other ethnic and religious minorities who have been successful asset acquirers?

Sunrise Lawmaking and Democratic Constitutionalism

“Sunrise amendments”—constitutional provisions that only take effect after a substantial time delay—could revolutionize American politics. Yet they remain undertheorized and unfamiliar. This Article presents the first comprehensive examination of sunrise lawmaking. It first explores a theoretical puzzle. On the one hand, sunrise lawmaking resuscitates the possibility of using Article V amendments to forge “a more perfect union” by inducing disinterested behavior from legislators. On the other, it exacerbates the “counter-majoritarian difficulty” inherent in all constitutional lawmaking. When one generation passes a law that affects exclusively its successors, it sidesteps the traditional forms of democratic accountability that constrain and legitimate the legislative process. The Article accordingly argues that while sunrise lawmaking holds considerable promise, it should be confined to “democracy-enhancing” reforms that increase future generations’ capacity to govern themselves. With this normative framework in place, the Article turns to the question of how time delays have actually been used in American constitutional history. It identifies six different instances of sunrise lawmaking in the U.S. Constitution. It argues that several of these illustrate how sunrise lawmaking can enhance the democratic character of American government, but at least one offers a cautionary tale of how temporal dislocation in constitutional lawmaking can have pernicious consequences.

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth century, “political questions” were not constitutional questions but instead were factual determinations made by the political branches that courts treated as conclusive in the course of deciding cases. Second, when the current doctrine was finally created in the mid-twentieth century, the Supreme Court used it to entrench, rather than to undermine, the Court’s emerging supremacy over constitutional law. Under the current doctrine, the Court asserts for itself the power to decide which institution decides any constitutional question. With control over that first-order question, the Court can conclude not only that an issue is textually committed to a political branch but also that an issue is committed to the Court itself. This analysis turns on its head the assumption of scholars that the current doctrine is at odds with judicial supremacy. The modern political question doctrine is a species of—not a limitation on—judicial supremacy.

Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.

This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices—such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures—should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically accountable footing.

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determine whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on.

My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of “those political processes ordinarily to be relied upon to protect minorities.” Second, “those political processes” refer to pluralism: the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power— one that (1) is continuous rather than binary, (2) spans all issues, (3) focuses on policy enactment, and (4) controls for group size, and (5) type. These are precisely the elements of my suggested definition.

But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.

How Delegation Diminishes the Collective Congress

This Article identifies a previously unexplored problem with the delegation of legislative power by focusing not on the discretion given to executive agencies, but instead on how delegations allow individual congressmen to control administration. Delegations create administrative discretion, discretion that members of Congress can influence through a variety of formal and informal mechanisms. Members have persistent incentives for delegation to agencies, because it is often easier to serve their interests through shaping administration than by passing legislation. To understand the particular problem of delegation, I introduce the concept of the “collective Congress.” Collective decisionmaking is a fundamental characteristic of the legislative power. The collective Congress serves an important separation of powers principle by aligning the ambitions of legislators with the power of Congress as an institution. Although members represent distinct interests, the Constitution allows members of Congress to exercise power only collectively and specifically precludes them from exercising any type of individual or executive power. Delegation, however, provides opportunities for individual legislators to influence administration and poses a serious separation of powers concern by fracturing the collective Congress. This insight undermines the conventional view that delegations will be self-correcting because Congress will jealously guard its lawmaking power from the executive. Instead, members of Congress will often prefer to collude and to share administrative power with the executive. As a result, delegation destroys the Madisonian checks and balances against excessive delegation. This structural failure suggests a need to reconsider judicial enforcement of the nondelegation doctrine and to implement political reforms to realign Congress with its collective power.

Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve public safety. While these federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, they also encourage harmful policing. Of course, policing often interferes with our interests in autonomy, privacy, and property, and those harms are often worthwhile in exchange for security and order. Federal public safety programs, however, are designed, implemented, and evaluated without reference to the nonbudgetary costs of policing. When those costs are high, federal programs can make local policing seem cheaper for communities, but actually make it more costly in its impacts and therefore less efficient.

The coercion costs of policing are overlooked in most assessments of policing policy, not just in federal programs. Ordinarily, however, even when they are not formally recognized, those costs are accounted for, at least to some degree, in local political processes because local government officials experience public ire when the harms of policing become too great. Unfortunately, federal programs also frequently undermine this check on the intrusiveness of local policing. Internalizing the nonbudgetary costs of policing depends on public capacity to monitor harmful police conduct and on city officials’ capacity to influence police conduct. Some federal programs interfere with these conditions by clouding responsibility for law enforcement coercion and by giving money directly to departments rather than to municipalities. Thus, federal programs not only ignore significant costs of the policies they subsidize, they also interfere with the usual local mechanisms for man- aging those costs. Until federal public safety programs are approached with a more complete understanding of policing—one that attends to its full costs and the need for accountability—federal programs will continue to promote policing practices that do more harm than necessary and maybe even more harm than good.

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives—including in the field of criminal law—has sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front end to achieve policy goals. What about enforcement decisions already made, either by the President’s own agents or by actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. This clemency power is a powerful tool for the President to oversee federal criminal administration. But while centralized authority over enforcement discretion at the front end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been largely overlooked: It is a critical mechanism for the President to control the executive department in criminal matters. Those in favor of strong presidential administration or advocates of a unitary executive theory should encourage a more robust employment of the clemency power. But even critics of strong presidential powers or unitary executive theory in other contexts should embrace clemency as a mechanism of control in the criminal sphere. Whatever the merits of other unitary executive or presidential administration claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it has an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law.

A decade of war has meant a decade of writing on war powers. From the authority to start a war, to restrictions on fighting wars, to the authority to end a war, constitutional lawyers and scholars have explored the classic issues (war initiation, prosecution, and termination) through the classic prisms (text, history, and function) for a new generation of national security challenges. Despite the volume of writing on war powers and the urgency of the debates in the context of Iraq, Afghanistan, Libya, and Syria, war powers debates are widely seen as stagnant. We introduce a new set of perspectives into the war powers literature. Over the last four decades, behavioral psychologists have identified persistent biases in individual and group decisionmaking. The behavioral revolution has had a significant impact on legal scholarship—primarily in law and economics—and has also influenced scholars in international relations, who increasingly write about psychological biases and other decisionmaking challenges. These insights, however, have yet to be applied in the war powers context. This Article brings the behavioral literature into the conversation on war powers, showing how lessons from behavioral psychology are relevant to decisions on war and peace. It outlines a variety of psychological biases that bear on decisions about war and peace, applies these lessons to a variety of war powers debates, and discusses broader institutional design strategies for debiasing decisionmaking. The lessons of psychology provide new functional perspectives on classic war powers debates: the authority of Congress versus the President to initiate wars, the scope of presidential authority to use force, the ability of Congress to restrict the conduct of war, the War Powers Resolution and the termination of wars, and the role of the United Nations. Some of the decisionmaking biases point in conflicting directions, so there are no simple answers or tidy solutions. But understanding where important decisions risk going wrong is the first step in figuring out how to make them go right.

Things are valuable because they are scarce. The more abundant they become, the cheaper they become. But a series of technological changes is underway that promises to end scarcity as we know it for a wide variety of goods. The Internet is the most obvious example, because the change there is furthest along. The Internet has reduced the cost of production and distribution of informational content effectively to zero. More recently, new technologies promise to do for a variety of physical goods and even services what the Internet has already done for information. The role of intellectual property (IP) in such a world is both controverted and critically important. Efforts to use IP to lock down the Internet have so far failed to stem the unauthorized distribution of content. But contrary to the predictions of IP theory, the result of that failure has not been a decline in creativity. To the contrary, creativity is flourishing on the Internet as never before despite the absence of effective IP enforcement. That is a problem for IP theory, which may not be the main driver of creativity in a world where creation, reproduction, and distribution are cheap. That is increasingly the world in which we will live.