Articles

Why do income tax systems across the world consistently feature progressive marginal rates? The existing literature tells a political story focusing on the top of the rate schedule and the preferences of the poor and the middle class. According to this standard view, higher rates at the top result from the poor and the middle class using the political process to “soak the rich.” However, this explanation is inconsistent with research showing that public policy is generally more responsive to the preferences of the rich. Explaining marginal rate progressivity as a universal (and exceptional) triumph of the poor and the middle class rings hollow.

This Article resolves the tension in the existing literature by demonstrating how progressive marginal rates are consistent with the preferences of the rich. Marginal rate progressivity is the combination of two policies—higher rates at the top and lower rates at the bottom. This Article shifts the focus to the bottom of the rate schedule and argues that the rich and the middle class benefit from inframarginal tax cuts—rate cuts at low levels of income. The intuition is that taxpayers benefit from rate cuts if they occur at levels that are at or below their own income.

This means that rate progressivity is not entirely progressive policy. Increasing marginal rates at the top increases the progressivity of the fiscal system. But marginal rate cuts at low levels of income can have the opposite effect. They are particularly pernicious because they can be framed as “low-income” tax cuts. A cynical view of marginal rate progressivity is that it allows the rich and politicians to pay cheap lip service to progressivity, even though there are many better tools available for achieving that goal. Unfortunately, cutting inframarginal rates remains politically popular. Both House Speaker Paul Ryan and President Donald Trump’s tax plans feature such tax cuts prominently. Understanding the regressive effect of inframarginal rate cuts has never been more important.

For generations, debates over what level of government should pay for local government services—most notably school funding—have largely boiled down to a simple pair of assumptions. Having the state or federal government pay for services promotes equality across rich and poor areas, but hampers local tailoring and thereby reduces citizens’ choice sets. Economists call this an equity-efficiency trade-off—centralized funding promotes equity but undermines efficiency.

This Article argues that this presumed trade-off is not as stark as generally thought, as it ignores important and underappreciated reasons that centralization promotes choice and thus efficiency. Specifically, more centralized funding helps people live where they prefer to live, unburdened by artificially needing to pay more for services in poor jurisdictions with large numbers of impoverished households who can pay little for services themselves. This insight should not only shift the scholarly debate on the equity-efficiency trade-off, but also supply important, real-world payoffs for debates over school funding and similar programs. Put simply, centralized funding promotes equality and, by promoting choice, efficiency.

The Article does not merely make a theoretical argument; it also empirically tests the claim using natural experiments across the country in centralizing state funding for schools. The Article finds large efficiency benefits. The results also show that more centralized financing has encouraged people to move back to central cities, suggesting a second, hidden efficiency benefit to more centralized financing: It promotes the positive externalities associated with central city living. The Article could thus broaden support for more centralized funding of local services, something that could fundamentally reshape not just academic debates over fiscal federalism, but also state and local fiscal policy and urban living.

Interpreting the language of contracts may be the most common and least satisfactory task courts perform in contract disputes. This Article proposes to take much of this task out of the hands of lawyers and judges, entrusting it instead to the public. The Article develops and tests a novel regime—the “survey interpretation method”—in which interpretation disputes are resolved through large surveys of representative respondents, by choosing the meaning that a majority supports. This Article demonstrates the rich potential for this method to examine variations of contractual language that could have made an intended meaning clearer. A similar survey regime has been applied successfully in trademark and unfair competition law for decades to interpret precontractual messages, and this Article shows how it could be extended to interpret contractual texts. The Article focuses on the interpretation of consumer contracts as the primary application of the proposed method, but demonstrates how the method could also apply to contracts between sophisticated parties. To demonstrate the technique, this Article applies the survey interpretation method to five real cases in which courts struggled to interpret contracts. It then provides normative, pragmatic, and doctrinal support for the proposed regime.

Few decisions in the criminal justice process are as consequential as the determination of bail. Indeed, recent empirical research finds that pre-trial detention imposes substantial long-term costs on defendants and society. Defendants who are detained before trial are more likely to plead guilty, less likely to be employed, and less likely to access social safety net programs for several years after arrest. Spurred in part by these concerns, critics of the bail system have urged numerous jurisdictions to adopt bail reforms, which have led to growing momentum for a large-scale transformation of the bail system. Yet supporters of the current system counter that pre-trial detention reduces flight and pre-trial crime—recognized benefits to society—by incapacitating defendants. Despite empirical evidence in support of both positions, however, advocates and critics of the current bail system have generally ignored the real trade-offs associated with detention.

This Article provides a broad conceptual framework for how policymakers can design a better bail system by weighing both the costs and benefits of pre-trial detention—trade-offs that are historically grounded in law, but often disregarded in practice. I begin by presenting a simple taxonomy of the major categories of costs and benefits that stem from pre-trial detention. Building from this taxonomy, I conduct a partial cost-benefit analysis that incorporates the existing evidence, finding that the current state of pre-trial detention is generating large social losses. Next, I formally present a framework that accounts for heterogeneity in both costs and benefits across defendants, illustrating that detention on the basis of “risk” alone can lead to socially suboptimal outcomes.

In the next part of the Article, I present new empirical evidence showing that a cost-benefit framework has the potential to improve accuracy and equity in bail decision-making, where currently bail judges are left to their own heuristics and biases. Using data on criminal defendants and bail judges in two urban jurisdictions, and exploiting variation from the random assignment of cases to judges, I find significant judge differences in pre-trial release rates, the assignment of money bail, and racial gaps in release rates. While there are any number of reasons why judges within the same jurisdiction may vary in their bail decisions, these results indicate that judges may not be all setting bail at the socially optimal level.

The conceptual framework developed in this Article also sheds light on the ability of recent bail reforms to increase social welfare. While the empirical evidence is scant, electronic monitoring holds promise as a welfare-enhancing alternative to pre-trial detention. In contrast, application of the conceptual framework cautions against the expanding use of risk-assessment instruments. These instruments, by recommending the detention of high-risk defendants, overlook the possibility that these high-risk defendants may also be “high-harm” such that they are most adversely affected by a stay in jail. Instead, I recommend that jurisdictions develop “net benefit” assessment instruments by predicting both risk and harm for each defendant in order to move closer toward a bail system that maximizes social welfare.

At the core of trademark law has long been the blackletter principle that the stronger a trademark is, the greater the likelihood that consumers will confuse similar marks with it and thus the wider the scope of protection the mark should receive. The relation between trademark strength and trademark scope is always positive. The strongest marks receive the widest scope of protection.

In this article, we challenge this conventional wisdom. We argue that as a mark achieves very high levels of strength, the relation between strength and confusion turns negative. The very strength of such a superstrong mark operates to ensure that consumers will not mistake other marks for it. Thus, the scope of protection for such marks ought to be narrower compared to merely strong marks. If we are correct, then numerous trademark disputes involving the best-known marks should be resolved differently—in favor of defendants. Our approach draws support from case law of the Federal Circuit—developed but then suppressed by that court—and numerous foreign jurisdictions.

As we show, some courts justify the conventional wisdom on the alternative ground that, whatever the likelihood of confusion, defendants with similar marks should not reap where they have not sown. This misplaced concern with free riding suffers from multiple analytical flaws and is contrary to trademark policy. These flaws are compounded where the mark owner sues a competitor, claiming expansive scope over similar but non-confusing marks. The fundamental change in trademark doctrine that we propose not only conforms to the empirical realities of consumer perception, but also advances the overarching policy goal of trademark law, which is not to enable the strongest to grow even stronger, but rather to promote effective competition.

Why not rid the United States of criminal noncitizens and the disorder they cause? Because, scholars urge, immigrants reduce crime rates, deporting noncitizens with criminal convictions costs far more than it is worth, and discarding immigrants when they become inconvenient is wrong. Despite the force of these responses, reform efforts have made little headway. Crime-based deportation appears entrenched. Can it be transformed, rather than modified at the margins?

Transformation is possible, but only if crime-based deportation is reenvisioned as the prerogative of local governments. National transformation, this Article shows, is a dead end. When the problem of immigrant crime is digested at the national level, under the rubric of “the national interest”—where noncitizen interests do not count by definition—there are numerous “rational” reasons why a self- interested citizenry would want to deport noncitizens, even for minor crimes. Additionally, whatever rational reasons exist are exaggerated by the national media, which gives the rare violent crime committed by an immigrant outsized national attention. The danger posed by this distorted media reality was highlighted by Donald Trump throughout his campaign for president. Trump’s establishment of an office to publicize crimes committed by deportable noncitizens will make the problem more acute.

Local governments, by contrast, can be more concrete, flexible, and pragmatic; they are apt to think in terms of residents and community, rather than citizen versus alien. Local residents think about neighbors, classmates, and fellow churchgoers, and the economic and social contributions of noncitizens who run afoul of the law loom larger in the local calculus than the national one. Were local governments granted responsibility for crime-based deportation, the humanity, value, and membership of immigrants who commit crimes would be more likely to enter the conversation about appropriate responses, helping to transform crime-based deportation.

This Article sheds light on significant doctrinal and policy issues that are central to the proper understanding of the administrative state. It grapples with a core question of administrative law: When are agencies established with features that insulate them from direct presidential control? Because of its constitutional significance, the legal literature focuses on removal protection for agency heads, and posits that agencies are more likely to be accorded such protection when the presidency and at least one of the chambers of Congress are controlled by different parties. The empirical support for this claim comes from a single political science study, which suffers from significant design flaws and has been widely misinterpreted. In fact, it shows that under almost all plausible scenarios Congress is less likely to vest agencies with indicia of independence under divided government.

To properly study the factors that affect the probability that agencies will be accorded indicia of independence we constructed and analyzed a new dataset. Three principal variables have a statistically significant impact: the approval rating of the President, the size of the Senate majority, and the alignment of the political party of the Senate majority and the President. The latter two variables had never been tested prior to our study. We find that Congress is less likely to establish agencies with indicia of independence when the President is popular. Moreover, when the Senate majority is not aligned with the President, an increase in the majority makes it more likely that Congress will establish an agency with indicia of independence. And, for a given size of Senate majority, alignment with the President makes it more likely that Congress will establish an agency with indicia of independence. Changes in the composition of the House do not produce comparable effects, suggesting that the Senate’s filibuster rule or the Senate’s role in confirming presidential appointees might play a role in this regard. Noting that the empirical results explain relatively little of the variation observed in the dataset related to when Congress establishes agencies with indicia of independence, this Article also explores the limitations of the quantitative empirical findings and the benefits of performing detailed case studies.

Observers have suggested that adding sources of interpretation tends to increase interpreter discretion. The idea is embedded in a quip, attributed to Judge Harold Leventhal, that citing legislative history is like “looking over a crowd and picking out your friends.” Participants in debates over interpretive method have applied the idea to the proliferation of other sources as well, including canons of construction and originalist history. But the logic of “more sources, more discretion” has escaped serious testing. And predicting the effect of source proliferation is not a matter of logic alone. The empirical study of how information loads affect behavior has grown dramatically in recent decades, though almost without notice in legal scholarship on interpretive method.

This Article tests the logic and evidence for “more sources, more discretion.” The idea turns out to be incorrect, without more, as a matter of logic. Adding sources tends to reduce the chance of discretion using a simple model of interpretation. This starter model depicts judges as aggregators of source implications, and it draws on basic probability theory and computer simulations to illustrate. The analysis does change if we allow judges to “spin” or “cherry pick” sources, but without much hope for limiting discretion by limiting sources. Of course, judges will not always behave like machines executing instructions or otherwise follow the logic of these models. Thus the Article goes on to spotlight provocative empirical studies of information-load effects, develop working theories of interpreter behavior, and present new evidence.

After emphasizing that interpreters might ignore additional information at some point, the Article tests three other theories. First, an extended dataset casts doubt on an earlier study that linked a growing stock of precedents to increased judicial discretion. Adding to the pile of precedents seems to have no simple pattern of effect on discretion. Second, existing studies indicate that increasing information loads might prompt judges to promote the status quo, and new data suggest that this effect depends on the type of information added. The number of sources cited in appellant briefs appears to have no effect on judges’ willingness to affirm—in contrast with the number of words and issues presented, which may have opposing effects. Third, an expanded dataset supports an earlier finding that judges who face a large number of doctrinal factors might weight those factors in a quasi-legal fashion. This time-saving prioritization does not seem to follow conventional ideological lines.

With simple intuitions in doubt, thoughtful work remains to be done on the effects of source proliferation. Observers interested in judicial discretion have good reason to look beyond source proliferation to find it. And observers interested in institutional design have good reason to rethink the range of consequences when information is added to our judicial systems.

A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy and designed it to mitigate rather than reflect economic power imbalances. This Article connects their procedural reform efforts in the enactment of the Norris-LaGuardia Act of 1932 to the rise of the Federal Rules of Civil Procedure of 1938, and, in so doing, reveals the unexplored progressive economic foundations of federal civil procedure.

This history provides a platform for a more conceptual analysis about civil procedure and economic power. The Article embeds the Norris-LaGuardia Act’s procedural provisions in the rise of the federal government’s facilitation of the “countervailing power” of workers, and begins to articulate the procedural dimensions of economic empowerment. While countervailing power is typically thought of as being facilitated by substantive law, the Norris-LaGuardia Act demonstrates how civil procedure can facilitate the exercise of countervailing power by providing economically less-resourced parties with open hearings and structuring procedure to protect their ability to amass power through association. More broadly, and returning to present issues, this Article argues that the recent transformations in civil procedure both undermine the economic purposes that were central to the regime’s rise and diminish the ability of diffuse economic actors to exercise counter- vailing power—threatening once-enduring procedural commitments.

When it comes to transnational litigation in the federal courts, it is time to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to promote international comity and protect defendant fairness. But it was never well designed for the former purpose, and given recent developments at the Supreme Court, it is dangerously redundant when it comes to the latter. This Article seeks to demythologize forum non conveniens, to question its continuing relevance, and to encourage the courts and Congress to narrow its scope of application so that, when the time is right, it may be fully interred.