NewYorkUniversity
LawReview
Issue

Volume 94, Number 2

May 2019
Articles

Natural Transplants

Vanessa Casado Pérez, Yael R. Lifshitz

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a “legal transplant”—as when one state copies another state’s innovations or when the federal government learns from the “laboratories of democracy.” This Article unveils a new dimension of legal transplants: transplants across subject areas. By transplants across subject areas, this article refers to instances when a jurisdiction looks for doctrines in other legal areas, often within its own legal system, when regulating a new resource or addressing a new challenge.


This Article makes three key contributions. First, it identifies a new type of transplant—between subject matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

Gerrylaundering

Robert Yablon

As they carry out their decennial redistricting duties, those in power sometimes audaciously manipulate district lines to secure an electoral advantage. In other words, they gerrymander. Often, however, the existing map already gives those in power a significant edge, and they may see little need for an overhaul. For them, the name of the game during redistricting is continuity rather than change.

This Article introduces the concept of “gerrylaundering” to describe mapmakers’ efforts to lock in their favorable position by preserving key elements of the existing map. Gerrylaundering and gerrymandering both serve anti-competitive ends, but they do so through different means. Unlike gerrymandering, gerrylaundering requires no conspicuous cracking and packing of disfavored voters. Instead, it involves what this Article dubs locking and stocking: Mapmakers lock in prior district configurations to the extent possible and stock each new district with one incumbent. Based on a review of redistricting practices in all fifty states, this Article concludes that gerrylaundering is widespread and that self-serving mapmakers commonly combine gerrylaundering and gerrymandering techniques in varying proportions to achieve their preferred results.


Recognizing gerrylaundering as a phenomenon enriches existing redistricting discourse by spotlighting the insidious nature of continuity strategies: They serve to advantage those in power, yet, since they appear more restrained than radical redesigns, they come with a veneer of legitimacy. This Article concludes that the veneer is thin. As a legal matter, efforts to preserve district cores and protect incumbents do not stand on the same footing as efforts to comply with traditional geographic districting principles. As a policy matter, gerrylaundering is more likely to subvert core democratic values than to foster them. At least two significant takeaways follow: First, courts should approach continuity criteria skeptically both when they review challenges to redistricting plans and when they draw maps themselves. Second, and more broadly, minimizing the legacy of prior maps has the potential to inject healthy dynamism into our system of district-based representation.

Memes on Memes and the New Creativity

Amy Adler, Jeanne C. Fromer

Memes are the paradigm of a new, flourishing creativity. Not only are these captioned images one of the most pervasive and important forms of online creativity, but they also upend many of copyright law’s fundamental assumptions about creativity, commercialization, and distribution. Chief among these assumptions is that copying is harmful. Not only does this mismatch threaten meme culture and expose fundamental problems in copyright law and theory, but the mismatch is even more significant because memes are far from an exceptional case. Indeed, memes are a prototype of a new mode of creativity that is emerging in our contemporary digital era, as can be seen across a range of works. Therefore, the concern with memes signals a much broader problem in copyright law and theory. This is not to say that the traditional creativity that copyright has long sought to protect is dead. Far from it. Both paths of creativity, traditional and new, can be vibrant. Yet we must be sensitive to the misfit between the new creativity and existing copyright law if we want the new creativity to continue to thrive.

Financial Inclusion in Politics

Abhay P. Aneja, Jacob M. Grumbach, Abby K. Wood

Our deregulated campaign finance system has a race problem. In this Article, we apply innovations in statistical methods to the universe of campaign contributions for federal elections and analyze the racial distribution of money in American politics between 1980 and 2012. We find that white people are extremely over-represented among donors. This racial gap in campaign contributions is significantly greater than the gap between white and nonwhite voter participation and white and nonwhite officer holders. It is also relatively constant across time and elected offices.

This result is an important missing piece in the conversation about equity in political participation. We argue that the courts and Congress should take steps to address the racial gaps in campaign finance participation. The participation and representation problems that flow from racial inequality in deregulated campaign finance could inform claims under the Voting Rights Act (VRA), and politico-financial inequalities certainly bear on the normative problems that the statute intends to address. But the most politically viable way to address the campaign finance racial gap lies in adoption of public financing for political campaigns, which offer the promise of increasing the racial representation of campaign contributions. When racial representation in contributions is improved, improved equality in the distribution of resources and power in electoral and political systems should follow.

Movement Judges

Brandon Hasbrouck

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable outcomes. But some judges—movement judges—bring more to the bench than just empathy, raging against systemic injustice with an understanding of its burdens on real human lives. This Article argues that we need movement judges to realize the abolitionist and democracy-affirming potential of the Constitution. Although the judiciary is often described as the “least democratic” of the three branches of government, it has the potential to be the most democratic. With movement judges, the judiciary can become a force for “We the People.”

Colorblind Tax Enforcement

Jeremy Bearer-Friend

The United States Internal Revenue Service (IRS) has repeatedly taken the position
that because the IRS does not ask taxpayers to identify their race or ethnicity on
submitted tax returns, IRS enforcement actions are not affected by taxpayers’ race
or ethnicity. This claim, which I call “colorblind tax enforcement,” has been made
by multiple IRS Commissioners serving in multiple administrations (both
Democratic and Republican). This claim has been made to members of Congress
and to members of the press.

In this Article, I refute the IRS position that racial bias cannot occur under current
IRS practices. I do so by identifying the conditions under which race and ethnicity
could determine tax enforcement outcomes under three separate models of racial
bias: racial animus, implicit bias, and transmitted bias. I then demonstrate how such
conditions can be present across seven distinct tax enforcement settings regardless
of whether the IRS asks about race or ethnicity. The IRS enforcement settings ana-
lyzed include summonses, civil penalty assessments, collection due process hear-
ings, innocent spouse relief, and Department of Justice (DOJ) referrals.

By establishing that every major enforcement function of the IRS remains vulner-
able to racial bias, this Article also challenges the IRS decision to omit race and
ethnicity from the collection and analysis of tax data. The absence of publicly avail-
able data on IRS enforcement activities by race should not be interpreted as evi-
dence that no racial disparities exist. I conclude by describing alternative
approaches to preventing racial bias in tax enforcement other than the current IRS
policy of purported colorblindness.

Structural Biases in Structural Constitutional Law

Jonathan S. Gould, David E. Pozen

Structural constitutional law regulates the workings of government and supplies the
rules of the political game. Whether by design or by accident, these rules sometimes
tilt the playing field for or against certain political factions—not just episodically,
based on who holds power at a given moment, but systematically over time—in
terms of electoral outcomes or policy objectives. In these instances, structural con-
stitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases,
with a focus on biases affecting the major political parties. Recent years have wit-
nessed a revival of political conflict over the basic terms of the U.S. constitutional
order. We suggest that this phenomenon, and a large part of structural constitu-
tional conflict in general, is best explained by the interaction between partisan
polarization and structural bias, each of which can intensify the other. The Article
also offers a typology of structural biases, keyed to the contemporary United States
but potentially applicable to any system. To date, legal scholars have lagged social
scientists in investigating the efficiency, distributional, and political effects of gov-
ernance arrangements. The concept of structural bias, we aim to show, can help
bridge this disciplinary gap and thereby advance the study of constitutional design
and constitutional politics.

Revitalizing Tribal Sovereignty in Treatymaking

David H. Moore, Michalyn Steele

In the current model of federal-Indian relations, the United States claims a plenary
legislative power, as putative guardian, to regulate Indian tribes. Under this model,
tribes are essentially wards in a state of pupilage. But the federal-tribal relationship
was not always so. Originally, the federal government embraced, even promoted, a
more robust model of tribal sovereignty in which federal-Indian treatymaking and
diplomacy figured prominently. Through treaties, the United States and tribes nego-
tiated territorial boundaries, forged alliances, facilitated trade, and otherwise man-
aged their relations. In 1871, Congress attempted to put an end to federal-Indian
treatymaking by purporting to strip tribes of their status as legitimate treaty part-
ners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition
of tribes as sovereign entities with whom the United States could negotiate treaties.
Since that time, the 1871 Act and the plenary power-pupilage model it entrenched
have grown deep roots in federal Indian law and the policies of the United States.
Congress has aggrandized its role in tribal life at the expense of tribal sovereignty,
and the coordinate branches of the federal government have acquiesced in this
foundational shift.


The literature of federal Indian law has wrestled with the doctrine of plenary power,
contemplated the fate of the federal-tribal treaty relationship, and questioned the
constitutionality of the 1871 rider. This Article posits new arguments for the uncon-
stitutionality of the 1871 Act, uprooting the presumptions underlying the Act and
revitalizing the prospect of federal-Indian treatymaking. Two recent developments
provide an opportunity for such a transformation. In
Zivotofsky v. Kerry, the
Supreme Court held that the President alone possesses the power to recognize for-
eign states and governments. While
Zivotofsky was a landmark case for U.S. for-
eign relations law, its potential significance for federal Indian law has gone
underappreciated.
Zivotofsky did not directly address the locus of power to recog-
nize tribal sovereignty to enter treaties, but it prompts the question and provides a
blueprint for arriving at an answer. Engaging that blueprint, this Article argues that
the President possesses the exclusive power to recognize tribes’ sovereign capacity
to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to
limit that power. In our view, the President can and should unilaterally reengage in
federal-Indian treatymaking, revitalizing treatymaking and reanimating the sover-
eignty model of federal-Indian relations.

Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism

William N. Eskridge, Jr., Victoria F. Nourse

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts to evaluate the new textualism’s asserted neutrality, predictability, and objectivity in its canonical cases, as well as in Bostock and other recent textual debates.

The authors find that textual gerrymandering—suppressing some relevant texts while picking apart others, as well as cherry-picking context—has been pervasive. Texts and contexts are chosen to achieve particular results—without any law-based justification. Further, this Article shows that, by adopting the seemingly benign “we are all textualists now” position, liberals as well as conservatives have avoided the key analytic questions and have contributed to the marginalization of the nation’s premier representative body, namely, Congress. Today, the Supreme Court asks how “ordinary” populist readers interpret language (the consumer economy of statutory interpretation) even as the Court rejects the production economy (the legislative authors’ meaning).

Without returning to discredited searches for ephemeral “legislative intent,” we propose a new focus on legislative evidence of meaning. In the spirit of Dean John F. Manning’s suggestion that purposivists have improved their approach by imposing text-based discipline, textualists can improve their approach to choice of text and choice of context by imposing the discipline of what we call “republican evidence”—evidence of how the legislative authors explained the statute to ordinary readers. A republic is defined by law based upon the people’s representatives; hence the name for our theory: “republican evidence.” This Article concludes by affirming the republican nature of Madisonian constitutional design and situating the Court’s assault on republican evidence as part of a larger crisis posed by populist movements to republican democracies today.

Bargaining for Integration

Shirley Lin

The Americans with Disabilities Act (ADA) requires employers to restructure exclusionary environments upon the request of their employees with disabilities so that they may continue working. Under a virtually unexamined aspect of the mandate, however, the parties must negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis.

Although the very existence of the mandate has been heavily debated, scholarship has yet to acknowledge that the ADA is actually ambivalent to individuals’ relative power to effect organizational change through bargaining. This Article is the first to critique the law’s interactive requirements. The process does not appear in the statute, but is an agency’s conceptualization of the mandate as an idealized exchange. By evaluating new empirical evidence relating to race, class, and gender outcomes against the meso-level theories underlying the mandate, this Article argues that the process disempowers employees through deficits of information, individuated design, and employers’ resistance to costs. Nonetheless, momentum to replicate the mandate to accommodate pregnancy and other workers’ needs continues apace.

As the workplace is increasingly deemed essential to societal well-being, this new frame reveals the law’s design flaws and unfulfilled potential. In response, this Article proposes reallocations of power so that the state may gather and publicize organizational precedent to facilitate structural analysis, regulation, and innovation at scale; legally recognize that antidiscrimination work, particularly dismantling ableist environments, is a collective endeavor; and expand the social insurance model for accommodations. Perhaps, then, the ADA’s original vision of institutional transformation may become possible.

Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy

Douglas NeJaime, Reva Siegel

In a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservatives agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.

In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet our understanding of the Carolene Products framework dates not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representation-reinforcing judicial review that endorsed decisions protecting certain rights— voting, speech, and equal protection, specifically Brown v. Board of Education— and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.

With the benefit of the intervening forty years, this Article revisits and reassesses Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy-promoting, but he argued his case on faulty premises. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants in the modern substantive due process cases—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.

What might this reconsideration of the modern substantive due process cases suggest about the ongoing debate over the role of federal courts in a constitutional democracy? This Article does not engage with the particulars of court reform, but it does shed light on certain fundamental premises of that debate. Our analysis rules out one commonly cited justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the modern substantive due process cases are the classic illustration. We show the many ways in which judicial intervention in these cases was democracy-promoting. As one looks at concrete lines of cases and structural features of courts, one can ask about the democracy-promoting and democracy-inhibiting ways that courts perform and pose more discriminating questions about the goals of court reform—whether to adopt reforms that make courts more independent, less polarized, more open, and more democratically responsive, or to limit their role in all or certain areas of a democratic order.

Weaponizing En Banc

Neal Devins, Allison Orr Larsen

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals—an us versus them—where the judges vote in blocs aligned with the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.

In this Article, we test whether en banc review is now or has ever been weaponized. We make use of an original data set—the most comprehensive one of which we are aware—that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule-of-law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018–2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc review. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule-of-law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses.

The Right to Benefit from Big Data as a Public Resource

Mary D. Fan

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of rights in the big data ocean.

This Article is the first to frame a right of the public to benefit from our consumer big data. Drawing on insights from property theory, regulatory advances, and open innovation, the Article introduces a model that permits controlled access and the use of big data for public interest purposes while protecting against privacy harms, among others. I propose defining a right of access to pooled personal data for public purposes, with sensitive information safeguarded by a controlled-access procedure akin to that used by institutional review boards in medical research today. To encourage companies to voluntarily share data for public interest purposes, the Article also proposes regulatory sandboxes and safe harbors akin to those successfully deployed in other domains, such as antitrust, financial technology, and intellectual property law.

Black on Black Representation

Alexis Hoag

When it comes to combating structural racism, representation matters, and this is true for criminal defense as much as it is for mental health services and education. This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants and argues that such an expansion could be of particular benefit to indigent Black defendants. Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches. First, it connects indigent representation to existing literature from other fields—clinical therapy and education—both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients. To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust, factors that the American Bar Association identifies as integral to criminal defense. Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine. The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to people who qualify for appointed counsel.

Progressive Tax Procedure

Joshua D. Blank, Ari Glogower

Abusive tax avoidance and tax evasion by high-income taxpayers pose unique threats to the tax system. These strategies undermine the tax system’s progressive features and distort its distributional burdens. Responses to this challenge generally fall within two categories: calls to increase IRS enforcement and “activity-based rules” targeting the specific strategies that enable tax avoidance and evasion by these taxpayers. Both of these responses, however, offer incomplete solutions to the problems of high-end noncompliance.

This Article presents the case for “progressive tax procedure”—means-based adjustments to the tax procedure rules for high-income taxpayers. In contrast to the activity-based rules in current law, progressive tax procedure would tailor rules to the economic circumstances of the actors rather than their activities. For example, under this approach, a high-income taxpayer would face higher tax penalty rates or longer periods where the IRS could assess tax deficiencies. Progressive tax procedure could also allow an exception for low-value tax underpayments, to avoid excessive IRS scrutiny or unduly burdensome rules for less serious offenses.

Progressive tax procedure could address the unique challenges posed by high-end tax noncompliance and equalize the effect of the tax procedure rules for taxpayers in varying economic circumstances. It could also complement the alternative approaches of increasing tax enforcement and activity-based rules while avoiding the limitations of relying exclusively on these responses.

After developing the normative case for progressive tax procedure, the Article illustrates how it could be applied in three specific areas: accuracy-related tax penalties, the reasonable cause defense, and the statute of limitations. These applications illuminate the basic design choices in implementing progressive tax procedure, including the types of rules that should be adjusted and the methods for designing these adjustments.

Reality Porn

I. India Thusi

Prostitution is illegal while pornography is constitutionally protected. Modern technology, however, is complicating the relationship between prostitution and pornography. Recent technological advances make the creation and distribution of recorded material more accessible. Within our smart phones we carry agile distribution networks as well as the technical equipment required to produce low-budget films. Today, sex workers may be paid to engage in sexual activities as part of performances that are recorded and broadcast to a public audience. No longer confined to the pornography industry, this form of sexual performance can be created by anyone with a cell phone and access to the internet. In addition, modern popular culture recognizes the expressive value of reality and ordinary life. Technological advances will only continue to make broadcasting and sharing everyday life possible, raising the possibility that there will be a growing audience for, and communities organized around, sexually expressive materials online. This Article is the first to analyze this increasingly important and common phenomenon that it defines as reality porn. It argues that reality porn is pornographic paid sex work that should be accorded First Amendment recognition, notwithstanding the criminalization of the underlying act of prostitution. This Article redefines pornography and provides a framework for analyzing this sexual expression. As long as the conduct is consentable—both consented to in fact and consensual in nature—it should not be deprived of constitutional protection.

Who Should Pay for COVID-19? The Inescapable Normativity of International Law

Sebastián Guidi, Nahuel Maisley

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, former U.S. President Trump and others have suggested suing China for damages. This “lawsuit approach” draws on a deep-seated conception of international law: States have a sovereign “right to be left alone”; the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.

In this Article, we explore this lawsuit approach—not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.

Specifically, we make three novel claims. The first is that the arguments made using the lawsuit approach (based on the International Health Regulations and the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit approach faces difficulties stemming from the lack of deep normative agreement in international law on how to deal with unprecedented challenges such as COVID-19.

Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit approach leads back to the global conversation about the allocation of losses that it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”), making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids and therefore requires complex reconstructions of what states owe to one another.

Our third claim further extends the foregoing reasoning. The lawsuit approach relies on international law as a means to achieve corrective justice while denying its implications for distributive justice. We argue that this is conceptually impossible. Allocating responsibility for the pandemic implicates inherently distributive concepts: To decide, an adjudicator would need to rely on a pretorian rule detailing how much effort and expense countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independent of its content. The misfortunes derived from the pandemic are not conceptually different from the mis- fortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit approach might be unpleasantly surprised by where that road leads them.

The Folklore of Unfairness

Luke Herrine

The Federal Trade Commission Act’s ban on “unfair . . . acts and practices” would, on its face, seem to give the FTC an awesome power to define proper treatment of consumers in changing conditions. But even in a world of widespread corporate surveillance, ongoing racial discrimination, impenetrably complex financial products, pyramid schemes, and more, the unfairness authority is used rarely, mostly in egregious cases of wrongdoing. Why?

The standard explanation is that the more expansive notion of unfairness was tried in the 1970s, and it failed spectacularly. The FTC of this era was staffed by bureaucrats convinced of their own moral superiority and blind to the self-correcting dynamics of the market. When the FTC finally reached too far and tried to ban television advertising of sugary cereals to children, it undermined its own legitimacy, causing Congress to put pressure on the agency to narrow its definition of unfairness.

This Article argues that this standard explanation gets the law and the history wrong, and, thus, that the FTC’s unfairness authority is more potent than commonly assumed. The regulatory initiatives of the 1970s were actually quite popular. The backlash against them was led by the businesses whose profit margins they threatened. Leaders of these businesses had become increasingly radicalized and well-organized and brought their new political clout to bear on an unsuspecting FTC. It was not the re-articulation of the unfairness standard in 1980 that narrowed unfairness to its current form, but rather the subsequent takeover of the FTC by neoliberal economists and lawyers who had been supported by these radicalized business leaders. The main limitation on the use of the unfairness authority since then has been the ideology of regulators charged with its enforcement. In fact, the conventional morality tale about the FTC’s efforts in the 1970s are part of what keeps this ideology dominant.

A reconsideration of the meaning of unfairness requires situating the drama of the 1970s and 80s in a longer struggle over governance of consumer markets. Since the creation of the FTC, and even before, an evolving set of coalitions have battled over what makes markets fair. These coalitions can be divided roughly into those who favor norm setting by government agencies informed by experts held accountable to democratic publics and those who favor norm setting by business leaders made accountable via the profit motive. The meaning of “unfair . . . acts and practices” has been defined and redefined through these struggles, and it can and should be redefined again to reconstruct the state capacity to define standards of fair dealing.

Police Quotas

Shaun Ossei-Owusu

The American public is slowly recognizing the criminal justice system’s deep defects. Mounting visual evidence of police brutality and social protests are generating an appetite for something different. How to change this system is still an open question. People across the political spectrum vary in their conceptions of the pressing problems and how to solve them. Interestingly, there is one consequential and overlooked area of the criminal justice system where there is broad consensus: police quotas.

Police quotas are formal and informal measures that require police officers to issue a particular number of citations or make a certain number of arrests. Although law enforcement leadership typically denies implementing quotas, courts, legislators, and officers have all confirmed the existence of this practice and linked it to odious criminal justice problems such as racial profiling, policing for profit, and overcriminalization. These problems have led legislators in many states to implement statutory prohibitions on quotas. Some of these statutes are of recent vintage and others are decades old. Nevertheless, these prohibitions and their attendant litigation have escaped sustained analytical scrutiny. Legal scholars typically overlook police quotas, subsume them within other categories (e.g., broken windows policing), or give pat acknowledgment of their existence without explaining how they work.

This Article corrects these omissions and makes two arguments. First, it contends that police quotas are a significant but undertheorized feature of criminal law and procedure. Quotas make police rewards and sanctions significant features of punishment in ways that can trump criminal offending and pervert due process principles. Second, it argues that quota-based policing is a unique area where there is widespread agreement and possibilities for change. Liberals, libertarians, conservatives, police officers, police unions, and racial minorities have all criticized police quotas. These vastly different constituents have argued that quotas distort police discretion and produce unnecessary police-civilian interactions. This Article supplements these arguments with a novel descriptive, statutory, and jurisprudential account of police quotas in the United States. It offers a framework for under- standing the arguments for and objections to quotas, and proposes some normative strategies that could build on statutory and litigation successes.

MDL Revolution

Elizabeth Chamblee Burch, Abbe R. Gluck

Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.

Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to it—MDL is finally in public view. State attorneys general have resisted the opioid MDL’s intense nationalism, its relentless drive to global settlement, its wild procedural innovation, its blurring of differences across state law, and its dramatic assertions of jurisdictional authority. Opiates is the most extraordinary MDL yet, but most big MDLs share many of its features, and Opiates is already the roadmap for the next mega-cases. Moreover, even as resistance to Opiates has dispersed some of the MDL’s early power, that resistance itself has come in the form of unusual procedural mechanisms.

MDL is designed for individual cases—giving similar suits filed in different districts an efficient pretrial process before sending them home for trial. In reality, that is pure fiction. Few cases ever return. And the MDL’s mode of coordination—from its anti-federalism stance to its insistence that each proceeding is too unique to be confined by the Federal Rules—chafes at almost every aspect of procedure’s traditional rules and values. MDL is not-so-secretly changing the face of civil procedure.

This Article weaves together for the first time these exceptional features of MDL and their disruption of procedure’s core assumptions. Is MDL a revolution? Or simply a symptom of a larger set of modern procedural tensions manifesting in many forms? Either way, it begs the question: What do we expect of litigation on this scale?

We recognize that MDL fills important gaps by providing access to courts but argue for some return to regular order to safeguard due process, federalism, and sovereignty. We suggest specific shifts—from more pretrial motions to new paths for appellate review, attorney selection, and jurisdictional redundancy—where the normative balance seems particularly out of whack; shifts we believe are in line with the spirit of Federal Rule 1’s own inherent paradox—the ideal of “just, speedy and inexpensive procedure.”

We also offer the first comprehensive analysis of the historic suits over the opioid crisis. Opiates is the first MDL that pits localities against their own state attorneys general in a struggle for litigation control. Its judge has publicly stated that solving a national health crisis that Congress dumped in his lap is different from ordinary litigation. Opiates has even invented a new form of class action. It is hyper-dialectical, jurisdictionally competitive, outcome-oriented, repeat-player-rich, fiercely creative procedure.

Cracking the Whole Code Rule

Anita S. Krishnakumar

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half Terms. The Article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions. The Article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons. For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third compare statutes that regulate entirely unrelated subject areas. Moreover, more than a few of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.

This Article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural choices. The Article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.

Populist Prosecutorial Nullification

W. Kerrel Murray

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.

In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.

This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: At least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.

Dangerous Citations

Maggie Gardner

This Article considers when optional case citations may do more harm than good. There are valid reasons for citing to non-binding precedent—to promote consistency in the law, for example, or to avoid wasteful redundancy. But unconsidered invocations of non-binding authority may also introduce error into individual opinions and distort the path of the law over time. This Article catalogues such dangerous citations as used in particular by federal district courts citing to other federal district courts with three goals in mind: to help judges use non-binding authority constructively, to help law clerks think critically about their citation practices, and to help readers of judicial opinions question the rhetoric of constraint.

In mapping these problematic uses of non-binding authority, the Article distinguishes between poorly conceived citations and poorly implemented citations. Poorly conceived citations are those for which non-binding precedent is simply not a useful authority. Examples of poorly conceived citations include reliance on prior opinions to establish facts or the content of another sovereign’s laws. Poorly implemented citations are those for which non-binding precedent may be relevant but should be selected and applied with care. Examples of poorly implemented citations include over-extended analogies and reliance on judge-made tests that are misaligned with the question being evaluated. This catalogue of poorly conceived and poorly implemented citations surfaces some common themes, including the need for better-designed tests and the challenges posed by modern research methods. But dangerous citations are not simply a matter of inadvertence, carelessness, or mistake; they may also be deployed for rhetorical purposes, in particular to signal legitimacy and restraint. The Article thus ends with a warning against “performative judging,” or the use of excessive citations to suggest greater constraint than the law in fact provides. Such citations are dangerous not just for the error they may introduce, but also because they obscure judicial choice and the inherently discretionary nature of judging.

Laboratories of Exclusion: Medicaid, Federalism, & Immigrants

Medha D. Makhlouf

Medicaid’s cooperative federalism structure gives states significant discretion to include or exclude various categories of noncitizens. This has created extreme geographic variability in noncitizens’ access to health coverage. This Article describes federalism’s role in influencing state policies on noncitizen eligibility for Medicaid and its implications for national health policy. Although there are disagreements over the extent to which public funds should be used to subsidize noncitizen health coverage, this Article reveals that decentralized policymaking on noncitizen access to Medicaid has weakened national health policy by increasing wasteful spending and exacerbating inequities in access to healthcare. It has failed to incentivize the type of state policy experimentation and replication that justifies federalism arrangements in other contexts. Rather, federalism has (1) enabled states to enact exclusionary policies that are ineffective and inhumane and (2) created barriers for states to enact inclusionary policies that advance the normative goals of health policy. This Article concludes that noncitizen access to health coverage is best addressed through centralized policymaking.

This Article contributes to scholarly conversations about federalism and healthcare by providing a case study to test the efficacy of federalism arrangements in achieving equity for those who were left behind by health reform. More broadly, it adds to the federalism literature by synthesizing insights from three fields that rarely comment on one another: health law, immigration law, and federalism theory.

Congress’s Article III Power and the Process of Constitutional Change

Christopher Jon Sprigman

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that is how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which the Supreme Court has never spoken definitively.

In this Article I argue that Congress, working through the ordinary legislative process, may remove the jurisdiction of federal and even state courts to hear cases involving particular questions of federal law, including cases that raise questions under the Federal Constitution. Understood this way, the implications of Congress’s Article III power are profound. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. Compared with judicial review, the political constraint is, of course, less formal and predictable. But that does not mean that the political constraint is weak. A successful exercise of its Article III power will require a majority in Congress, and, in most instances, a President, who agree both on the substantive policy at issue and on the political viability of overriding the public expectation that Congress should face a judicial check. In such instances, we should welcome the exercise of Congress’s Article III power. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.

Racial Disparities in Maternal Mortality

Khiara M. Bridges

Racial disparities in maternal mortality have recently become a popular topic, with a host of media outlets devoting time and space to covering the appalling state of black maternal health in the country. Congress responded to this increased societal awareness by passing the Preventing Maternal Deaths Act at the tail end of 2018. The law provides states twelve million dollars annually, for five years, to fund maternal mortality review commissions—interdisciplinary collections of experts that evaluate and investigate the causes of every maternal death in a jurisdiction. Fascinatingly, although activists, journalists, politicians, scholars, and other commentators understand that the maternal health tragedy in the United States is a racial tragedy, the Preventing Maternal Deaths Act completely ignores race. Indeed, the term “race” does not appear anywhere in the text of the statute. The irony is striking: An effort to address a phenomenon that has become salient because of its racial nature ignores race entirely.

The racial irony embodied by the Preventing Maternal Deaths Act serves as an invitation to investigate not only the Act itself, but the national conversation that is currently taking place about racial disparities in maternal deaths. Indeed, in important respects, if the general discourse that surrounds racial disparities in maternal mortality is impoverished, then we should expect that the solutions that observers propose will be impoverished as well. This is precisely what this Article discovers. The analysis proceeds in four Parts.

Part I provides an overview of racial disparities in maternal mortality, identifying the various elements that have made pregnancy, childbirth, and the postpartum period much more dangerous for black women than their white counterparts in the United States. Part II then offers critiques of the national conversation around racial disparities in maternal mortality and warns of both the marginalizing effects it may have on black women and the possibility that it will lead to blaming black women for dying on the path to motherhood.

Part III describes the Preventing Maternal Deaths Act in some detail. Part IV follows with a critique of the Act, identifying three deficiencies. First, it notes the racial erasure contained in the Act—the fact that the Act nowhere mentions the racial dimensions of the nation’s maternal health debacle. It then observes the predicament created by the fact that erasing race likely was essential to the very passage of the Act. Second, it notes that because the Act does not direct the state maternal mortality review commissions to investigate the structural and institutional forces that produce excess maternal deaths in the United States, it leaves space for maternal mortality review commissions to simply blame the dead for dying. Third, it notes that the Act does no more than fund the gathering of more data about pregnancy-related deaths. However, it observes that there is a strong argument to be made that we do not need more data. We already know why women are dying, and we already know how to save them. In this way, the tragedy of maternal mortality in the United States is not a problem of information; it is a problem of political will. To the extent that Congress chose to intervene in the maternal health debacle not with policy changes, but rather with an attestation that we need more information, the Preventing Maternal Deaths Act demonstrates that we still lack the political will to make the concrete changes that will make pregnancy and childbirth safe.

Delay in the Shadow of Death

Lee Kovarsky

There is a widely held belief that, in order to delay executions, American death-row prisoners strategically defer litigation until the eleventh hour. After all, the logic goes, the incentives for prisoners who face the death penalty differ from those who do not. Noncapital prisoners typically try to move the terminal point of a sentence (release) forward, and capital prisoners typically try to push that point (execution) back. This theory of litigant behavior—what I call the “Strategic Delay Account,” or the “SDA”—underwrites an extraordinarily harsh institutional response. It primes courts to discount real constitutional grievances and to punish participating lawyers, and it spurs legislatures to restrict crucial remedies.

In this Article, I explain that the SDA inaccurately describes condemned prisoner behavior, both because it assumes a non-existent incentive structure and because it ignores the major structural causes of delayed litigation. First, deferred litigation is risky, and fortune disfavors the bold. Procedural doctrines that operate across post-conviction law strongly incentivize the promptest conceivable presentation of claims. Second, prisoners often omit challenges from early rounds of litigation not because they have done so strategically, but instead because some claims are inherently incapable of being asserted at that time. Third, the volume of end-stage litigation reflects the comprehensive failure of American jurisdictions to provide adequate legal services; condemned prisoners are often functionally unrepresented from the moment early-stage proceedings conclude until the state sets an execution date.

Disability and Design

Christopher Buccafusco

When scholars contemplate the legal tools available to policymakers for encouraging innovation, they primarily think about patents. If they are keeping up with the most recent literature, they may also consider grants, prizes, and taxes as means to increase the supply of innovation. But the innovation policy toolkit is substantially deeper than that. To demonstrate its depth, this Article explores the evolution of designs that help people with disabilities access the world around them. From artificial limbs to the modern wheelchair and the reshaping of the built environment, a variety of legal doctrines have influenced, for better and for worse, the pace and direction of innovation for accessible design.

This Article argues that two of the most important drivers of innovation for accessible design have been social welfare laws and antidiscrimination laws. Both were responsible, in part, for the revolution in accessibility that occurred in the second half of the twentieth century. Unlike standard innovation incentives, however, these laws operate on the demand side of the market. Social welfare laws and antidiscrimination laws increase the ability and willingness of parties to pay for accessible technology, ultimately leading to greater supply. But in doing so, these laws generate a different distribution of the costs and benefits of innovation than supply-side incentives. They also produce their own sets of innovation distortions by allowing third parties to make decisions about the designs that people with disabilities have to use.

The law can promote innovation, and it can hinder it. For example, the law’s relationship to the wheelchair, the most important accessibility innovation of the twentieth century, produced both results. Policymakers have choices about which legal incentives doctrines they can use and how they can use them. This Article evaluates those tools, and it provides guidelines for their use to encourage accessible technology in particular and innovation generally.

Anti-Segregation Policing

Monica C. Bell

Conversations about police reform in lawmaking and legal scholarship typically take a narrow view of the multiple, complex roles that policing plays in American society, focusing primarily on their techniques of crime control. This Article breaks from that tendency, engaging police reform from a sociological perspective that focuses instead on the noncriminal functions of policing. In particular, it examines the role of policing in the daily maintenance of racial residential segregation, one of the central strategies of American racial inequality. Unlike previous work that touches on these issues, this Article argues that police reformers and police leaders should adopt an anti-segregation approach to policing. It also offers legal frameworks and policy prescriptions that flow from an anti-segregation ethic in police governance.

This Article begins by setting forth a rich account of residential segregation, clarifying the distinction between easily measurable proxies for segregation and the type of segregation with which law and policy should be concerned: the spatial separation that confines, subordinates, and dominates. It then identifies and illustrates six mechanisms through which American policing perpetuates residential segregation, drawing from sociological research, including qualitative narratives collected in Dallas County, Texas; Cuyahoga County, Ohio; and Baltimore, Maryland. Next, the Article sketches the architecture of anti-segregation policing, offering legal frameworks based on fair housing law and federal and state consent decrees, as well as a non-exhaustive set of practical approaches police departments could take to advance an anti-segregation agenda. Finally, the Article engages a fundamental question central to police transformation movements today: Is meaningful police reform, including anti-segregation policing, possible in a society that is structured through race?

The Imperative for Trauma-Responsive Special Education

Nicole Tuchinda

Recent, robust research makes clear that childhood trauma, such as abuse or neglect in the home or the chronic lack of basic necessities, is common and can cause and exacerbate disabilities in learning and behavior. These disabilities prevent many children from making educational progress, but evidence-based strategies now exist to give these children access to education. To appropriately implement these strategies, the nation’s educational disability rights laws—the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (together, “Section 504”)—must become “trauma-responsive” or “healing centered.” The imperative to make education for children with trauma-induced disabilities trauma-responsive is not just moral, however; it is also legal. IDEA’s “Child Find” and Section 504’s “Locate and Notify” mandates require public school systems to identify and provide an evaluation and individualized education to all children with disabilities. This is the first article in the legal literature to describe the need to make IDEA, Section 504, and their implementation trauma-responsive. This article is also the first to propose three ways to meet this need: 1) requiring assessment of trauma’s impact when trauma is suspected to be a cause of disability in a child; 2) amending IDEA to add a stand-alone, trauma-specific disability category through which children can become eligible for special education and recognizing that trauma causes disability under Section 504; and 3) putting trauma-responsive specialized instruction, related services, and accommodations into individualized educational programs developed under IDEA (“IEPs”) and programs developed under Section 504 (“504 plans”).

An Empirical Study of Statutory Interpretation in Tax Law

Jonathan H. Choi

A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation. 

It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism. 

These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies. 

Litigation as Parenting

Lisa V. Martin

Children have legal rights. Yet, children typically lack the legal capacity to represent their interests in courts. When federal courts are presented with children’s claims, the Federal Rules of Civil Procedure require courts to ensure that children’s legal interests are adequately protected. To do so, courts decide who can speak and make decisions for the child within the litigation. Federal Rule of Civil Procedure 17(c) maps out a loose process for addressing these concerns but fails to fully account for a critical factor in protecting child litigants: the decisionmaking rights of parents. 

Because parents have constitutionally protected authority to make important decisions for their children, litigation brought on a child’s behalf presents a collision of rights and obligations between parents, children, and “the state,” here, the federal courts. Court doctrine interpreting Rule 17(c) is tangled and inconsistent and fails to offer clear guidance regarding what preference, if any, parents should have to represent their children’s interests in litigation. This Article proposes for the first time that constitutional doctrine establishing parents’ protected decisionmaking authority should make parents the default representatives for their children in federal civil litigation. The Article presents an account of court practices and an analytical framework to guide courts’ application of Rule 17(c), which implements the general constitutional rule of parent priority while upholding the courts’ responsibility to protect children’s interests. 

Should Law Subsidize Driving?

Gregory H. Shill

A century ago, captains of industry and their allies in government launched a social experiment in urban America: the abandonment of mass transit in favor of a new personal technology, the private automobile. Decades of investment in this shift have created a car-centric landscape with Dickensian consequences. In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. Each year, they rack up trillions of dollars in direct and indirect costs and claim nearly 100,000 American lives via crashes and pollution, with the most vulnerable paying a disproportionate price. The appeal of the car’s convenience and the failure to effectively manage it has created a public health catastrophe. Many of the automobile’s social costs originate in individual preferences, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the United States is car-dependent by choice. But it is also car-dependent by law. This Article conceptualizes this problem and offers a way out. It begins by identifying a submerged, disconnected system of rules that furnish indirect yet extravagant subsidies to driving. These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large. They are found in every field of law, from traffic law to land use regulation to tax, tort, and environmental law. Law’s role is not primary, and at times it is even constructive. But where it is destructive, it is uniquely so: Law not only inflames a public health crisis but legitimizes it, ensuring the continuing dominance of the car. The Article urges a reorientation of law away from this system of automobile supremacy in favor of consensus social priorities, such as health, prosperity, and equity. 

The Prisoner and the Polity

Avlana K. Eisenberg

All punishment comes to an end. Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison. Though it is tempting to think of the “end” in concrete, factual terms—for example, as the moment when the prisoner is released—this concept also has normative dimensions. Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society. Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community. The “practices of incarceration”—including the prison environment and prison programs—are thus critically important because they can either facilitate or impede a prisoner’s reentry into society. However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny. 

This Article uses the case study of higher education programs in prison to expose the interdependence between the practices of incarceration and the principle of return. Drawing on original interviews with key stakeholders, it investigates how the features of higher education programs reflect and reinforce core beliefs about the goals of punishment and the state’s responsibility towards those it incarcerates. The Article critically examines the dominant harm-prevention justification for prison higher education, and the desert-based objection to it, finding that both are inadequate for failing to take into account the principle of return. 

This Article espouses an alternative approach that would recognize the ongoing relationship between prisoner and polity and devise incarceration practices accordingly. Building on insights from communitarian theory, this approach, which foregrounds the prisoner’s status in the polity, uncovers pervasive “us-versus-them” narratives in the prison context. The first such narrative is between prisoners and those members of the polity who view prisoners, falsely, as having forfeited their claims to membership in civil society. This view of prisoners, as members of a permanent and lower caste, is in direct conflict with the principle of return, which mandates that prisoners have at least a plausible hope of basic reintegration into society and that they avoid further harm—what might be termed “punishment-plus.” The Article also scrutinizes a second, more localized “us-versus-them” narrative between prisoners and correctional officers, which arises from their similar backgrounds and the common deprivation experienced by members of both groups. 

Finally, the Article recommends institutional design changes to mitigate “us-versus- them” dynamics: empowering stakeholders, for example, by affording correctional officers educational opportunities that would help professionalize their role and ease their resentment towards prisoners; and increasing exposure and empathy between incarcerated and non-incarcerated populations, such as by piloting a program that would employ recent college graduates to teach in prison. These and other proposed reforms would refocus the conversation around imprisonment to account for the central role of incarceration practices in revitalizing the principle of return, as well as the inextricable connection between prisoner and polity. 

The Medicare Innovation Subsidy

Mark A. Lemley, Lisa Larrimore Ouellette, Rachel E. Sachs

Policymakers on both ends of the political spectrum have been looking for ways to reduce prescription drug prices. Democrats have also been working on expanding healthcare coverage, including different versions of Medicare for All. All these proposals have been framed as issues of access and spending. If innovation incentives come up at all, it has primarily been because pharmaceutical companies claim that reducing drug prices will threaten innovation by lowering the returns from their patents. 

In fact, however, pharmaceutical access and innovation incentives are intimately related. Health insurance can change the structure of market demand. And Medicare in particular does so in a way that gives a very large subsidy to patented drugs, such that current U.S. pharmaceutical profits are often higher than they would be in an unsubsidized market. Medicare reimbursement rules thus can lead to greater-than-monopoly pricing of patented drugs, dramatically expanding the incentive U.S. policy provides to pharmaceutical companies. By not recognizing the Medicare innovation subsidy, policymakers have ignored one of the largest sources of innovation incentives. That extra incentive might be a good thing or a bad thing, depending on how much incentive pharmaceutical developers need. It may well be good for some classes of drugs and bad for others. But it is important for policymakers to understand how access policies like Medicare also serve as innovation incentives. This extra innovation subsidy may open the policy space for hybrid proposals that combine expanded government insurance like Medicare for All with lower drug prices while preserving or even increasing current returns to innovation. 

Isolated and Unreachable: Contesting Unconstitutional Restrictions on Communication in Immigration Detention

Zachary Manfredi, Joseph Meyers

As of January 1, 2019, the federal government held more than 51,000 noncitizens in immigration detention. Over the course of a year, nearly half a million noncitizens will pass through Department of Homeland Security custody within the interior of the United States while the government initiates proceedings to remove them from the country. Many of those detainees pursue immigration relief and contest both their detention and removal. However, numerous reports from the Office of the Inspector General and immigration practitioners consistently observe substantial barriers to effective communication from detention: Detainees are frequently held in or transferred to isolated locations, detention facilities often do not provide adequate telephone access or even alternative forms of communication, and facilities often deny or substantially delay in-person meetings with attorneys or other visitors. These barriers significantly affect the ability of unrepresented detainees to gather and present relevant evidence critical to litigating their removal claims. They also undermine essential communication between legal counsel and the detainees they represent in those proceedings. 

This Article argues that due process imposes affirmative obligations on the government to facilitate evidence gathering and communication with legal counsel for those noncitizens that it detains. While previous scholarship has advanced arguments for “immigration Gideon”—i.e., suggesting noncitizens should have a right to appointed counsel at state expense—our intervention instead focuses on how conditions of confinement that impair communication with counsel and evidence gathering may themselves run afoul of noncitizens’ Fifth Amendment due process rights. 

We offer a novel interpretation of recent Supreme Court and circuit court precedents on civil detention in order to ground noncitizens’ right to communicative access in the Fifth Amendment and propose a new framework for evaluating noncitizens’ rights to effective communication. Importantly, we also argue that the scope of noncitizen detainees’ rights to communicate with counsel should not be determined by the stark division between criminal and civil detention precedents. Rather, noncitizens’ access to counsel rights should encompass the procedural protections due process requires whenever the government acts as both initiator of adverse legal proceedings and jailor, including those protections traditionally associated with the Sixth Amendment. Our analysis finds that the scope of governmental obligation to provide communicative access derives from the noncitizens’ liberty interest in avoiding both detention and deportation and, in particular, follows from the government’s dual role in immigration proceedings as both initiator of adverse proceedings and jailor. The obligation to ensure a “full and fair” hearing requires that the government not impose barriers to communication that provide it with an unfair advantage in the litigation of noncitizens’ removal claims. 

We conclude that the Fifth Amendment’s Due Process Clause imposes affirmative obligations for the government to facilitate evidence gathering and communication between noncitizen detainees and their counsel. While the scope of the state’s affirmative obligations may vary in accordance with the immigration status of the detainee, we argue that in all cases the Fifth Amendment requires the federal government to provide detained noncitizens adequate means to solicit legal representation, meet privately with retained counsel, communicate with potential witnesses, access necessary records, and prepare evidence and testimony. Conditions of confinement that frustrate these basic guarantees offend the Fifth Amendment’s protection of a full and fair hearing and should be held unconstitutional. 

Educational Gerrymandering: Money, Motives, and Constitutional Rights

Derek W. Black

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts have done almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right is now approaching a tipping point. Either it evolves, or risks becoming irrelevant. 

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the equally important question of why states refuse to provide the necessary resources. As a result, states have never stopped engaging in the behavior that leads to the funding failures in the first place.

This Article argues that states refuse to fully fund low-income students’ education because they have ulterior aims and biases—maintaining privilege for suburban schools, lowering taxes for wealthy individuals, and not “wasting” money on low-income kids. States go to extraordinary lengths to manipulate school funding formulas to achieve these ends. Thus, the various policies that produce inequality and inadequacy are not just benign state failures; they are intentional efforts to gerrymander educational opportunity. Understood this way, school funding manipulations violate federal equal protection and state constitutional rights to education. Reframing school funding failures as gerrymandering can both create a much-needed federal check on educational inequality and reinvigorate the enforcement of state constitutional rights to education. 

Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account

James Gray Pope

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. 

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. 

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. 

The Second Digital Disruption: Streaming and the Dawn of Data-Driven Creativity

Kal Raustiala, Christopher Jon Sprigman

This Article explores how the explosive growth of online streaming is transforming the market for creative content. Two decades ago, the popularization of the internet led to what we refer to here as the first digital disruption: Napster, file-sharing, and the re-ordering of numerous content industries, from music to film to news. The advent of mass streaming has led us to a second digital disruption, one driven by the ability of streaming platforms to harvest massive amounts of data about consumer preferences and consumption patterns. Coupled to powerful computing, the data that firms like Netflix, Spotify, and Apple collect allows those firms to know what consumers want in incredible detail. This knowledge has long shaped advertising; now it is beginning to shape the content streaming firms purchase or even produce, a phenomenon we call “data-driven creativity.” This Article explores these phenomena across a range of firms and content industries. In particular, we take a close look at the firm that is perhaps farthest along in its use of data-driven creativity. We show how MindGeek, the little-known parent company of Pornhub and a leader in the market for adult entertainment, has leveraged streaming data not only to organize and suggest content to consumers but even to shape creative decisions. MindGeek is itself the product of the same forces—the shift to digital distribution and the accompanying explosion of free content—that transformed mainstream creative industries and paved the way for the rise of streaming. We first show how the adult industry adapted to the first digital disruption; that story aligns with similar accounts of how creative industries adapt to a loss of control over intellectual property. We then show how MindGeek and other streaming firms such as Netflix, Spotify, and Amazon are leveraging the second digital disruption, using data to make decisions about content promotion, aggregation, dissemination, and investment. Finally, we consider what these trends suggest for competition and innovation in markets for creative work. By making creative production far less risky, data-driven creativity may drive down the need for strong IP rights and reshape conventional assumptions about the purpose and role of IP. At the same time, the rise of data-driven creativity may reinforce the tendency of online markets toward dominance by a few major firms, with significant implications for competition and innovation.

Engineered Credit Default Swaps: Innovative or Manipulative?

Gina-Gail S. Fletcher

Credit default swaps (CDS) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS counterparties are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled the CDS market, leading some market participants to view the collaborations as a sign that CDS are little more than a rigged game. Conversely, some view “engineered CDS transactions” as an innovative form of financing for distressed companies. As engineered CDS transactions proliferate in the market, it becomes increasingly prudent to look beyond their contractual acceptability to assess whether, from a legal point of view, these transactions are permissible. 

Engineered CDS transactions demonstrate the challenges that the existing legal and non-legal framework face in effectively responding to new forms of market distortion. This Article examines the costs and benefits of engineered CDS transactions on the market as a precursor to determining whether legal intervention is needed. Assessment of the relative costs and benefits of engineered transactions indicates that despite their innovativeness, engineered CDS transactions are largely detrimental to the markets because they impose costs on actors unaffiliated with the CDS market and, more broadly, destroy public trust in the financial markets. Yet, despite their associated harms, legally, engineered transactions exist in a gray space. This Article analyzes the phenomenon of engineered CDS transactions, assessing the capacity of applicable legal frameworks, private standards, and market discipline to address these transactions, and finds each to be lacking. Consequently, this Article proposes a range of responses, including modernization of the existing anti- manipulation framework, to mitigate the harm and collateral consequences that stem from engineered CDS transactions. 

Beyond #MeToo

Deborah Tuerkheimer

The #MeToo movement has ushered in a new kind of sexual misconduct accusation—accusation leveled through informal channels of communication. A functional analysis shows that unofficial reporting can advance important ends. But the rise of informal accusation should be of special concern to legal scholars and lawyers, who generally proceed from certain assumptions regarding the primacy of formal systems of accountability. These basic assumptions need revision if, by aiming to satisfy goals that our laws and legal institutions fail to achieve, informal reporting channels are serving as substitutes for the officially sanctioned mechanisms of accountability that monopolize scholarly attention. Unofficial reporting pathways are imperfect legal workarounds; their prevalence means that the law of sexual misconduct has been consigned to a relative state of quiescence. Over time, survivors, long disserved by the criminal law, by campus disciplinary processes, and by workplace complaint structures, have mostly turned away from the systems that have forsaken them. A needed redesign of official complaint channels should be informed by the benefits of informal reporting, along with a commitment to awakening law. 

Foreign Affairs Prosecutions

Steven Arrigg Koh

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls for greater congressional engagement and judicial oversight to minimize such risks while still promoting accountability for cross-border, cyber, and international crime.

(Un)Civil Denaturalization

Cassandra Burke Robertson, Irina D. Manta

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends continue, it will continue to increase dramatically. This growth began under the Obama administration, which used improved digital tools to identify potential cases of naturalization fraud from years and decades ago. The Trump administration, however, is taking denaturalization to new levels as part of its overall immigration crackdown. It has announced plans for a denaturalization task force. And it is pursuing denaturalization as a civil-litigation remedy and not just a criminal sanction—a choice that prosecutors find advantageous because civil proceedings come with a lower burden of proof, no guarantee of counsel to the defendant, and no statute of limitations. In fact, the first successful denaturalization under this program was decided on summary judgment in favor of the government in 2018. The defendant was accused of having improperly filed an asylum claim twenty-five years ago, but he was never personally served with process and he never made an appearance in the case, either on his own or through counsel. Even today, it is not clear that he knows he has lost his citizenship.

The legal status of denaturalization is murky, in part because the Supreme Court has long struggled to articulate a consistent view of citizenship and its prerogatives.Nonetheless, the Court has set a number of significant limits on the government’s attempts to remove citizenship at will—limits that are inconsistent with the adminis- tration’s current litigation policy. This Article argues that stripping Americans of citizenship through the route of civil litigation not only violates substantive and procedural due process, but also infringes on the rights guaranteed by theCitizenship Clause of the Fourteenth Amendment. Finally, (un)civil denaturaliza- tion undermines the constitutional safeguards of democracy.

The Power of Prosecutors

Jeffrey Bellin

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It reveals a curious echo chamber enabled by a puzzling lack of dissent. With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect.

An unchallenged consensus that “prosecutors are the criminal justice system” and that the “institution of the prosecutor has more power than any other in the criminal justice system” has real consequences for criminal justice discourse. Portraying prosecutors as the system’s iron-fisted rulers obscures the complex interplay that actually determines criminal justice outcomes. The overheated rhetoric of prosecutorial preeminence fosters a superficial understanding of the criminal justice system, overlooks the powerful forces that can and do constrain prosecutors, and diverts attention from the most promising sources of reform (legislators, judges, and police) to the least (prosecutors).

Can a Statute Have More Than One Meaning?

Ryan D. Doerfler

What statutory language means can vary from statute to statute, or even provision to provision. But what about from case to case? The conventional wisdom is that the same language can mean different things as used in different places within the United States Code. As used in some specific place, however, that language means what it means. Put differently, the same statutory provision must mean the same thing in all cases. To hold otherwise, courts and scholars suggest, would be contrary both to the rules of grammar and to the rule of law.

This Article challenges that conventional wisdom. Building on the observation that speakers can and often do transparently communicate different things to different audiences with the same verbalization or written text, it argues that, as a purely linguistic matter, there is nothing to prevent Congress from doing the same with statutes. More still, because the practical advantages of using multiple meanings— in particular, linguistic economy—are at least as important to Congress as to ordinary speakers, this Article argues further that it would be just plain odd if Congress never chose to communicate multiple messages with the same statutory text.

As this Article goes on to show, recognizing the possibility of multiple statutory meanings would let courts reach sensible answers to important doctrinal questions they currently do their best to avoid. Most notably, thinking about multiple meanings in an informed way would help courts explain under what conditions more than one agency should receive deference when interpreting a multi-agency statute. Relatedly, it would let courts reject as false the choice between Chevron deference and the rule of lenity for statutes with both civil and criminal applications.

The Death of Corporate Law

Zohar Goshen, Sharon Hannes

For decades, corporate law played a pivotal role in regulating corporations across the United States. Consequently, Delaware, the leading state of incorporation, and its courts came to occupy a central and influential position in corporate law and governance. This, however, is no longer the case: The compositional shift in equity markets from retail to institutional ownership has relocated regulatory power over corporations from courts to markets. Corporate law has, as a result, and as illustrated by the declined role of the Delaware courts, lost its pride of place and is now eclipsed by shareholder activism.

What explains the connection between the rise of institutional ownership and the death of corporate law? We answer this question by unpacking the relationship between market dynamics and the role of corporate law. Our analysis uncovers a critical, yet hitherto unnoticed, insight: The more competent shareholders become, the less important corporate law will be. Increases in shareholder competence reduce management agency costs, intensify market actors’ preference for private ordering outside of courts, and, ultimately, drive corporate law into the shadow.

Afrofuturism, Critical Race Theory, and Policing in the Year 2044

I. Bennett Capers

In 2044, the United States is projected to become a “majority-minority” country, with people of color making up more than half of the population. And yet in the public imagination—from Robocop to Minority Report, from Star Trek to Star Wars, from A Clockwork Orange to 1984 to Brave New World—the future is usually envisioned as majority white. What might the future look like in year 2044, when people of color make up the majority in terms of numbers, or in the ensuing years, when they also wield the majority of political and economic power? And specifically, what might policing look like? This Article attempts to answer these questions by examining how artists, cybertheorists, and speculative scholars of color—Afrofuturists and Critical Race Theorists—have imagined the future. What can we learn from Afrofuturism, the term given to “speculative fiction that treats African-American themes and addresses African-American concerns [in the context of] techno culture?” And what can we learn from Critical Race Theory and its “father” Derrick Bell, who famously wrote of space explorers to examine issues of race and law? What do they imagine policing to be, and what can we imagine policing to be in a brown and black world?

Constitutional Gerrymandering Against Abortion Rights: NIFLA v. Becerra

Erwin Chemerinsky, Michele Goodwin

In National Institute of Family Life Advocates v. Becerra, the Supreme Court said that a preliminary injunction should have been issued against a California law that required that reproductive healthcare facilities post notices containing truthful factual information. All that was required by the law was posting a notice that the state of California makes available free and low-cost contraception and abortion for women who economically qualify. Also, unlicensed facilities were required to post a notice that they are not licensed by the state to provide healthcare.

In concluding that the California law is unconstitutional, the Court’s decision has enormously important implications. It puts all laws requiring disclosures in jeopardy because all, like the California law, prescribe the required content of speech. All disclosure laws now will need to meet strict scrutiny and thus are constitutionally vulnerable. Moreover, the ruling is inconsistent with prior Supreme Court decisions that allowed the government to require speech of physicians intended to discourage abortions. The Court ignored legal precedent, failed to weigh the interests at stake in its decision, and applied a more demanding standard based on content of speech.

But NIFLA v. Becerra is only secondarily about speech. It is impossible to understand the Court’s decision in NIFLA v. Becerra except as a reflection of the conservative Justices’ hostility to abortion rights and their indifference to the rights and interests of women, especially poor women. In this way, it is likely a harbinger of what is to come from a Court with a majority that is very hostile to abortion.

Subfederal Immigration Regulation and the Trump Effect

Huyen Pham, Pham Hoang Van

The restrictive changes made by the Trump presidency on U.S. immigration policy have been widely reported: the significant increases in both interior and border enforcement, the travel ban prohibiting immigration from majority-Muslim countries, and the decision to terminate the Deferred Action for Childhood Arrivals (DACA) program. Beyond the traditional levers of federal immigration control, this administration has also moved aggressively to harness the enforcement power of local and state police to increase interior immigration enforcement. To that end, the administration has employed both voluntary measures (like signing 287(g) agreements deputizing local police to enforce immigration laws) and involuntary measures (threatening to defund jurisdictions with so-called “sanctuary” laws).

What has been the “Trump Effect” on subfederal governments’ immigration policies? We define the Trump Effect as the influence that Trump’s immigration policies have had on the immigration policies of states, cities, and counties. Have they fallen in line with the federal push for restrictive policies and increased enforcement, or have they resisted? Using our unique Immigrant Climate Index (ICI), we track the response of cities, counties, and states by analyzing the immigration-related laws they enacted in 2017—the first year of the Trump administration—and comparing it to previous years’ activity. Based on our data, we make several observations. First, subfederal governments have responded with surprising speed and in unprecedented numbers to enact laws that are almost uniformly pro-immigrant. In response to increased federal enforcement, these subfederal governments have enacted “sanctuary” laws limiting their cooperation with federal immigration enforcement. Most of these laws were enacted by cities and counties, which enacted more immigration regulations in this one year than they enacted during the previous twelve years combined (2005–16).

Second, in the context of historical ICI scores, these immigrant-protective laws helped to pull the national ICI score sharply upward. By assigning scores (positive or negative) to each subfederal immigration law, our ICI has tracked the climate for immigrants on a state-by-state basis and identified distinct phases in subfederal immigration regulation since 2005. Though the national ICI score (where individual state scores are added together, through time) remains highly negative, we observe a distinct Trump effect in 2017: Immigrant-protective laws enacted by certain jurisdictions are creating more positive climates for immigrants in those jurisdictions.

Finally, the nature of governmental sanctuary in 2017 was distinctly more diverse than the sanctuary we have seen in decades past. In 2017, big urban cities were not the most active sanctuary cities, as was the case in past years; rather, medium-sized cities and suburbs with populations under 100,000 prevailed. Though most of these smaller jurisdictions voted for Hillary Clinton in the 2016 presidential election, a surprising number voted for Trump. Moreover, new sanctuary entities have emerged—including public school districts, public universities, and even mass transit authorities—which have limited their own cooperation with federal immigration enforcement. This diversity in government sanctuary reflects another aspect of the Trump Effect: how harsh immigration enforcement policies under this administration have made immigration issues much more important to a wider range of communities and to a larger range of policy areas.

Taxing Inequality

Ari Glogower

Economic inequality in the United States is now approaching historic levels last seen in the years leading up to the Great Depression. Scholars have long argued that the federal income tax alone cannot curtail rising inequality and that we should look beyond the income tax to a wealth tax. Taxing wealth also faces two central and resilient objections in the literature: A wealth tax penalizes savings and overlaps with a tax on capital income.

This Article moves beyond this stalemate to redefine the role of wealth in a progressive tax system. The Article first introduces a generalized framework for justifying a wealth tax centered in the relative economic power theory which explains how inequality of economic outcomes generates social and political harm. This theory formalizes the problem of inequality and has specific implications for how economic inequality should be measured and constrained.

The Article then describes design problems in coordinating taxes on labor income, capital income, and wealth as factors in inequality, and the limitations of each of these factors as a base for taxation. From this Article’s outcomes-based perspective, a capital income tax favors wealth holders relative to labor-income earners. A wealth tax, in contrast, disfavors wealth holders relative to labor-income earners and cannot account for taxpayers’ varying needs to save their wealth for different numbers of future periods. Finally, proposals in the literature for separate taxes on both income and wealth do not account for the relationship between the two as factors in economic well-being.

Finally, the Article introduces a redefined wealth tax as part of a new combined tax on both income and wealth. This approach first recharacterizes wealth and capital income as an annuity value (the “wealth annuity”), reflecting both capital income earned during the period and a portion of the taxpayer’s wealth principal. The wealth annuity is then added to the taxpayer’s labor income for the period to yield the combined base. This new tax base resolves the coordination problems with taxing labor income, capital income, and wealth as factors in economic inequality; accounts for the needs of savers; and tailors the tax base to the specific ways that inequality causes social and political harm.

Book Notes

Brown’s Demise

James Marvin Perez

All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education

We live in a nation where equality and integration have proven, and continue to prove, evasive. In 2005, despite the Supreme Court’s 1954 pronouncement in Brown v. Board of Education (Brown I), our public schools remain largely segregated, and there are few signs of improvement. Admittedly, African Americans are on the whole better off today than they were in 1954, but one only need observe any sector of society to realize that we have yet to reach Brown‘s full potential. Indeed, some commentators have labeled Brown‘s promise of equality through the desegregation of our public schools a “discredited goal.” Alas, Brown’s promise has become Brown‘s demise.

How Incentive Pay for Executives Isn’t–And What We Can Do About It

Meredith M. Stead

Pay Without Performance: The Unfulfilled Promise of Executive Compensation

When conversation turns to business, a topic guaranteed to provoke heated discussion is the extraordinary compensation that top American corporate executives enjoy. Periodically, as some new pinnacle is reached, the public reacts with a fresh wave of indignation. A well-known example is the story of Michael Ovitz. Hired as president of the Walt Disney Company by his friend, CEO Michael Eisner, Ovitz left the company after just fourteen months, having failed abysmally at his job by most reckonings. Upon his departure, however, Ovitz collected a “golden handshake” of not only his annual base salary of $1 million for the remainder of his five-year contract, but additional earnings from stock options and a generous severance package, totaling approximately $140 million. Outraged shareholders brought a derivative suit, and seven years after Ovitz’s departure, the case is still wending its way through the courts-and through the headlines.

Criminals and Commoners: Can We Still Tell the Difference?

William H. Edmonson

Go Directly to Jail: The Criminalization of Almost Everything

The government possesses a variety of tools to control the populace. Obvious examples include the criminal justice system, administrative regulation, and taxation. Because these tools involve varying degrees of coercion, the federal government’s choice of tools in addressing a particular problem has considerable impact on citizens, both financially and in terms of individual rights.

A Useful Conversation

William Creeley

Judges in Contemporary Democracy: An International Conversation

The inherent premise underlying Judges in Contemporary Democracy: An International Conversation may be stated simply: When judges talk, people listen. The attention is entirely deserved; the power of the judge in modern constitutional democracies, particularly those with provisions for judicial review, is extensive. Concordantly, the authority of the constitutional judge long has been in tension with democratic structure, where the will of the people, expressed through legislative act, otherwise would be considered supreme. What power does the judge have to determine the contours of constitutional imperatives, especially if judicial interpretation represents a divergence from popular sentiment and legislative decree? How can she purport to have an exclusive interpretative license on what otherwise might be thought of as common province, i.e., the securing terms of a shared constitution? The questions of legitimacy surrounding the countermajoritarian potential of judges exercising (or merely asserting) the power of judicial review have become particularly pressing following the contemporary incorporation of forms of judicial review throughout Western European countries in the latter half of the past century. No longer a vestige of American exceptionalism, judicial review-and the accordant power of the judge-has become an integral feature of the modern democratic state.

Evolving Strategies for Twenty-First Century Natural Resource Problems

William J. Wailand

East Central Florida sits atop the Floridan Aquifer, an underground water source covering 100,000 square miles and spanning Alabama, South Carolina, Georgia, and Florida (Berardo, pp. 64-65). As the population soars in this region, demand for water will likely increase dramatically, and average water consumption may reach 926 million gallons per day by the year 2020, a sixty percent increase from 1995 levels (Berardo, pp. 64-65). Increasing withdrawals have led to unsustainable levels of use and threaten environmental degradations—saltwater intrusion, reduced spring flows, drying lakes and wetlands—and political conflict (Berardo, p. 65). The principal governmental body in charge of water consumption has designated the area a Priority Water Resource Caution Area, but it is unable to unilaterally solve this impending problem for several reasons. First, the potential causes and impacts of unsustainable use extend beyond its jurisdiction. Second, the diverse array of stakeholders will be reluctant to accept a top-down, dictated solution concerning the sensitive issue of water resources. Third, scientists do not completely understand the potential impacts on the aquifer, and changing scientific understanding may alter potential solutions. How can this natural resource problem be addressed, when the solutions—and even the problems—are poorly understood, and no single administrative body is competent to develop and implement solutions?

Conversation, Representation, and Allocation: Justice Breyer’s Active Liberty

Michael A. Livermore, D. Theodore Rave

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation; rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls “active liberty.” Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.

Book Reviews

The Turn to History

Barry Friedman

Laura Kalman’s The Strange Career of Legal Liberalism is a rollicking romp through a half-century of law and legal scholarship. Suggesting that law professors read the book is something akin to asking playwrights to read their latest reviews. Kalman, a law-trained historian, tells us there was a time when she read law review articles to ease her to sleep, a strategy that failed her once the articles had “become too interesting.” Kalman’s subjects, legal scholars, are likely to find her book equally engrossing, and for reasons that reach far beyond membership in a mutual admiration society.

Between Complicity and Contempt: Racial Presumptions of the American Legal Process

Ronald K. Noble

The second volume in a series entitled “Race and the American Legal Process,” Shades of Freedom continues an odyssey that Judge Higginbotham embarked on over thirty years ago. This work shepherds the reader through centuries of ever-changing legal oppression of African Americans. As elegantly put by Judge Higginbotham himself, this book “delineate[s] the law’s contribution to the frequent dehumanization of many African Americans and its impact on the journey from the midnight of total oppression to some early dawns, where there were occasional glitters of light and muted shades of freedom.”

Bringing the People Back In

Daniel J. Hulsebosch

Review of The People Themselves: Popular Constitutionalism and Judicial Review

Almost a century ago, Charles Beard’s study of the American Founding, An Economic Interpretation of the Constitution, set the terms of debate about constitutional history for the Progressive era and informed the way lawyers viewed the Constitution for even longer. In The People Themselves, Larry Kramer has quite possibly done the same for a new generation of lawyers. Beard took an irreverent, tough-minded approach to the American Founding; Kramer is deeply skeptical of the conventional way that the Constitution is defined and offers an alternative that puts ordinary people, rather than judges, at the center of constitutional interpretation. If there is another Progressive era, it now has one of its foundational texts.

Commentaries

Commentary

Jeanine Pirro

As a prosecutor and former judge, I have been at both the receiving and pitching end of criticism of the judiciary. Criticism of judges is nothing new. It is something that we have engaged in throughout the course of our history, but now, because of the technological age in which we live, more and more people are aware of such criticism. My feeling is that if the judge cannot take public scrutiny and outcry, the judge should not be on the bench.

Commentary

Bob Herbert

I was a reporter at the Daily News when the term “Turn ’em Loose, Bruce” was hung on Bruce Wright. The Daily News and the New York Post had a field day with that. Two things struck me about that. One, the reporters and editors desperately wanted a “Turn ’em Loose, Bruce” story; they just wanted that story, they wanted to get that term in the lead, and they wanted it in the headline. The other thing was that not only did the editors not understand the implications of the facts in the cases that they were writing about–usually the case involved the allegedly low amounts of bail that Bruce Wright was setting–but they didn’t even understand the facts themselves. They didn’t care about the facts. The problem was that some of the stories were serious.

Things Fall Apart, But the Center Holds: The Supreme Court and the Death Penalty

Carol S. Steiker

Last June, in the course of a week, the Supreme Court issued two death penalty decisions—Atkins v. Virginia and Ring v. Arizona— which together invalidated, at least in part, the administration of capital punishment in roughly two-thirds of the American states that currently retain the death penalty on their books. Atkins prohibited the application of the death penalty to defendants with mental retardation in the twenty states without statutes already precluding such application, and Ring precluded judges (as opposed to juries) from making factual determinations that render a defendant eligi le for capital punishment in the five states where judges alone make capital sentencing determinations. In addition, Ring is likely to affect four states with hybrid sentencing schemes that mandate shared responsibility between judges and juries.

The Day Anthrax Came to the Supreme Court

Linda Greenhouse

Supreme Court correspondent, New York Times. B.A. Harvard University, 1968; M.S.L. Yale Law School, 1978.

This is the revised text of remarks delivered at the June 6, 2002 Association of American Law Schools / American Political Science Association Constitutional Law Conference.

Confessions of an Ambivalent Originalist

Jack N. Rakove

One of my favorite moments in Larry McMurtry’s wonderful novel, Lonesome Dove, comes when Augustus has to hang Jake Spoon, his feckless former Texas Ranger buddy who has gone bad by throwing in his lot with the murderous Suggs brothers. Gus half apologetically says to Jake, “I’m sorry you crossed the line,” and Jake distractedly replies, “I never seen no line, Gus. I was just trying to get to Kansas without getting scalped.” And soon justice is done.’

Unilateralism and Constitutionalism

Jed Rubenfeld

This Essay explores American unilateralism and the divergence between American and European attitudes toward international law. The United States, Professor Rubenfeld shows, has always displayed unilateralist tendencies. Since 1945, however, while Europe has grown ever more internationalist, the United States has spoken out of both sides of its mouth, acting both as a world leader in forging the new international order and as the world’s chief locus of resistance against that order. To understand this phenomena, Professor Rubenfeld argues, it is crucial to distinguish between two conceptions of constitutional law. “Democratic constitutionalism” sees constitutional law as the foundational law a particular polity has given itself through a special act of popular lawmaking. “International constitutionalism” sees constitutional law not as an act of democratic self-government, but as a check or restraint on democracy, deriving its authority from its expression of universal rights and principles that transcend national boundaries. The international charters and institutions that emerged after the Second World War were built on the premises of international constitutionalism. This development was broadly acceptable among elites in Europe, where World War II had come to exemplify the potential horrors of both nationalism and democracy. As a result, the true challenge international law’s supporters face today is that the existing international governance institutions are not only antinationalist, but antidemocratic–and not by accident, but by structure and design. To this extent, America, with its longstanding commitment to democratic constitutionalism, does in fact have good reason to resist international governance today. Drawing on this conclusion, Professor Rubenfeld suggests principles that could guide U.S. relations to international governance regimes, showing the kinds of international law that America could embrace without compromising its commitment to self-government.

Partisan Fairness and Redistricting Politics

Adam B. Cox

Courts and scholars have operated on the implicit assumption that the Supreme Court’s “one person, one vote” jurisprudence put redistricting politics on a fixed, ten-year cycle. Recent redistricting controversies in Colorado, Texas, and elsewhere, however, have undermined this assumption, highlighting the fact that most states are currently free to redraw election districts as often as they like. This essay explores whether partisan fairness-a normative commitment that both scholars and the Supreme Court have identified as a central concern of districting arrangements-would be promoted by a procedural rule limiting the frequency of redistricting. While the literature has not considered this question, scholars generally are pessimistic about the capacity of procedural redistricting regulations to curb partisan gerrymandering. In contrast, this essay argues that a procedural rule limiting the frequency of redistricting will promote partisan fairness by introducing beneficial uncertainty in the redistricting process and by regularizing the redistricting agenda.

From Exclusivism to Accomodation

Abdulaziz H. Al-Fahad

Doctrinal and Legal Evolution of Wahhabism

On August 2, 1990, Iraq attacked Kuwait. For several days thereafter, the Saudi Arabian media was not allowed to report the invasion and occupation of Kuwait. When the Saudi government was satisfied with the U.S. commitment to defend the country, it lifted the gag on the Saudi press as American and other soldiers poured into Saudi Arabia. In retrospect, it seems obvious that the Saudis, aware of their vulnerabilities and fearful of provoking the Iraqis, were reluctant to take any public position on the invasion until it was ascertained whether the United States was willing to commit its forces to the defense of the Kingdom and eventually the liberation of Kuwait.

Digital Speech and Democratic Culture

Jack M. Balkin

A Theory of Freedom of Expression for the Information Society

In this essay, Professor Balkin argues that digital technologies alter the social conditions of speech and thereforeshould change the focus of free speech theory, from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation, to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning-making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual’s ability to participate in the production and distribution of culture. Balkin argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.

By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and extend their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values-interactivity, mass participation, and the ability to modify and transform culture-must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will thus increasingly fall to legislatures, administrative agencies, and technologists.

Shaping Community Problem Solving Around Community Knowledge

Gerald P. Lopez

In this Commentary, Professor Gerald P. Lopez explores the origins, ambitions, and challenges of the Neighborhood Legal Needs & Resources Project (NLN&RP) and the role of the NLN&RP in the formation, mission, and future of the recently launched Center for Community Problem Solving at New York University. Informed by the “rebellious vision” of lawyering, the NLN&RP employs sophisticated survey methods and street-level contacts to collect, analyze, and distribute neglected knowledge about the problems faced by, and the problem solvers available to, residents of six New York City neighborhoods. Without drawing regularly upon such knowledge, problem solvers of every sortfall short of what they might achieve and what these low-income, of color, and immigrant communities deserve. For all its imperfections, the NLN&RP demonstrates one important way in which those working across public, private, and civic realms can team up with client communities to shape problem solving around community knowledge.

Comments

United States v. Chrysler: The Conflict Between Fair Warning and Adjudicative Retroactivity in D.C. Circuit Administrative Law

Kieran Ringgenberg

This Comment will analyze the fair warning rule in three Parts. Part I chronicles the Chrysler litigation. Part II summarizes the current state of the two competing doctrines of fair warning and retroactivity. Part III argues that the current articulation of the fair warning rule is overly broad in two ways. First, while the rule is rooted in due process, it now extends further than due process concerns warrant. The retroactivity rule, by contrast, more accurately balances the procedural concerns of regulated parties with the general public interest. Second, the overly broad fair warning rule creates perverse incentives for regulated parties and administrative agencies, incentives which ultimately call into question the rule’s efficacy at creating clear regulations and which hinder the efforts of agencies to pursue their statutory objectives effectively. The retroactivity rule, on the other hand, fosters cooperation between agencies and regulated parties by encouraging regulated parties to seek administrative clarifications of ambiguous regulations before disputes arise.

“If It Suffices To Accuse”: United States v. Watts and the Reassessment of Acquittals

Elizabeth E. Joh

This Comment tries to extract Watts from the context of statutory and constitutional interpretation and reread it as an inquiry into the meaning of acquittals in the current sentencing regime. Part I of this Comment places the enactment of the Guidelines into historical context and also looks at the limited ways in which the Supreme Court attempted to justify the practice sanctioned in Watts. Part II examines the legal justifications that might better explain the Court’s decision. Part III argues that even the best justifications offered for the Watts decision overlook the communicative effects of acquittals. Penal practices inevitably contribute to a social dialogue beyond the courtroom and the prison. This Comment argues that we should demand some coherence between social beliefs and sentencing decisions. Ultimately, Watts is problematic because it renders the acquittal verdict incoherent in a sentencing regime that many scholars and activists already find deeply unjust.

The Fiduciary Responsibilities of Investment Bankers in Change-of-Control Transactions: In re Daisy Systems Corp.

M. Breen Haire

This Comment examines the mischief that the Daisy ruling could make. Though advisors such as attorneys and auditors have previously been held to be fiduciaries of their clients, the Daisy court’s broad application of these duties to investment bankers poses unique problems. The first Part begins with a brief survey of pre-Daisy cases dealing with the responsibilities owed by bankers to their clients, and then turns to Daisy itself. The second Part discusses the Daisy court’s broad conception of the role of bankers in change-of-control transactions. The final Part is a policy and doctrinal critique of the Daisy rule, focusing especially on the undesirable incentives provided to bankers as a result of the holding. The Comment concludes that the court’s decision in Daisy promulgates a liability regime desirable neither as a matter of corporate governance nor as a shareholderprotection device.

Bankruptcy Court Jurisdiction and Agency Action: Resolving the NextWave of Conflict

Rafael Ignacio Pardo

In this Comment, Rafael Pardo criticizes a recent pair of decisions by the United States Court of Appeals for the Second Circuit, FCC v. NextWave Personal Communications, Inc. (In re NextWave Personal Communications, Inc.) and In re FCC. Those cases held that a bankruptcy court lacks jurisdiction to determine whether the Federal Communications Commission is stayed from revoking a debtor’s licenses. Pardo argues that the court of appeals interpreted the bankruptcy court’s jurisdiction too narrowly because it failed to distinguish properly between an agency’s action as a creditor and as a regulator. He concludes that bankruptcy courts and courts of appeals have concurrent jurisdiction to make automatic stay determinations regarding FCC licenses and that, for reasons of institutional competence, courts of appeals should defer to this exercise of jurisdiction by bankruptcy courts.

Lepage’s v. 3M: An Antitrust Analysis of Loyalty Rebates

Joanna Warren

In its en banc decision in LePage’s Inc. v. 3M, the Third Circuit held that a 3M loyalty rebate program, which provided above-cost price discounts to customers who purchased multiple 3M product lines, violated section 2 of the Sherman Act. Prior to this decision, many practitioners and scholars understood the antitrust case law to hold that a strategic pricing scheme would not violate section 2 so long as the discounted prices remained above cost. The Third Circuit found that this test applies only to predatory pricing cases, and ruled that claims alleging exclusionary conduct other than predatory pricing—as it characterized 3M’s loyalty rebate program—are cognizable under section 2 even without a showing of below-cost pricing. The Supreme Court recently denied certiorari in LePage’s, leaving the issue in the hands of the lower courts. In this Comment, Joanna Warren criticizes the Third Circuit’s decision as lacking sufficient economic analysis of the rebate scheme and providing unclear guidance for addressing future claims. She argues for the adoption of a test that would recognize above-cost pricing as generally legitimate while invalidating schemes that threaten to eliminate equally efficient competitors from the marketplace.

Essays

Hiding the Ball

Pierre Schlag

Lawyers, judges, law teachers, and law students are forever telling each other what the law is. Whether they are issuing briefs, opinions, or law review articles, they are forever staking out legal positions. And when they stake out these legal positions, they are always ascribing them to some ostensibly authoritative legal source. Hence, it is that legal actors and legal thinkers say things like, “The Constitution requires… ,” “The doctrine of worthier title provides … ,” “The parol evidence rule states that… ,” “18 U.S.C. 1503 prohibits … .” And so on.

The Bad Man and the Good Lawyer: A Centennial Essay on Holmes’s The Path of the Law

David Luban

This Essay explores the connections between Justice Holmes’s ideas about law practice and his jurisprudence. What we discover, or so I will argue, is an unfamiliar Holmes–a Holmes whose arguments differ in important respects from the standard positivist and realist ideas that later generations read back into The Path of the Law. I want to suggest that reading Path as proto-Hart, proto-Frank, or proto-Cohen distorts a good deal of what Holmes actually says. In my view, Holmes’s penchant for radical rhetoric leads him to overstate the conclusions that he actually means to establish and lands him in fallacies that I explore in some detail. Holmes had a more moralistic picture of lawyers and clients than his own tough talk suggests, and I will suggest that this accounts for the fallacies. In short, reading Path as an implicit definition of the good lawyer helps us distinguish the sound from the specious in the essay’s jurisprudence.

Bleeding Heart: Reflections on Using the Law To Make Social Change

Thomas B. Stoddard

“When and how, if ever, can the law change a society for the better? Are there more successful and less successful ways to make social change? Is the law an effective tool for social change? (Or should I have become a social worker instead of a lawyer?) Are there any lessons to be learned from the attempt by so many lawyers of my own generation to make social and cultural change through the formal rulemaking mechanisms of the law?”

This Essay is Professor Stoddard’s last work, which he was writing at the time he became ill. The Essay addresses the themes that ran through Professor Stoddard’s entire career as a public interest lawyer, focusing specifically on the ways in which litigation can make social change, and its limitations in that regard.

Lawyering for Social Justice

Nan D. Hunter

Not many of us are pioneers, but Tom Stoddard was. He fought for equality for lesbian and gay Americans before it was respectable; he was proudly out as a gay man before it was professionally safe to be out; and he taught one of the first courses centering on the rights of lesbians and gay men in any American law school. He lived to see the lesbian and gay civil rights struggle take its place with others as a campaign for human dignity and justice. Tom’s final Essay, Bleeding Heart Reflections on Using the Law to Make Social Change, is a reflection on the relationship between litigation, legislation, and the possibilities for law to operate as “culture-shifting” rather than merely “rule-shifting.” I argue that the litigation-legislative dynamic is more structurally complicated than the description in Bleeding Heart suggests, and highly contingent on the historical moment. I comment on what I think is one of the most significant aspects of the Bleeding Heart argument: the implicit assumption that lesbian and gay rights advocates have the potential to regularly win in the legislative arena. Lastly, I offer some thoughts on how one can more consciously seek a culture-shifting practice of law.

Borders (En)Gendered: Normativities, Latinas, and a LatCrit Paradigm

Berta Esperanza Hernandez-Truyol

This Essay, developed in a prologue and three parts, adopts Latinas'/os' world traveling as a metaphor for Latina/o multidimensionality and as a springboard for LatCrit theorizing. The Prologue is a brief diary entry of un fin de semana viajando mundos–a weekend of actual traveling between New York and Miami; law and familia; profesora and learner; colleague and hija; espanol and English; norte y sur; normativa and other; indigenous and alien. This abbreviated record of a Latina's life reveals, exposes, and unveils Latinas'/os' daily crossdressing simply by virtue of their latinidad. The Essay explores two sets of relationships vis-a-vis their significance to and impact on the development of LatCrit theory.

A Twentieth Amendment Parable

John Copeland Nagle

Once upon a time, there was a constitutional amendment that had avoided all of the disputes characteristic of constitutional law. The Supreme Court had never even mentioned it. Only four district court decisions had in any sense turned on the Amendment’s meaning. Law schools did not hold symposia exploring the subtleties of the Amendment. The definitive law review article on the Amendment had yet to be written. The most attention the Amendment received was as an example of a constitutional provision so straightforward that it generated few of the interpretive controversies that lurked elsewhere in the Constitution.

“Hey! There’s Ladies Here!!”

Sarah Berger, Angela Olivia Burton, Peggy Cooper Davis, Elizabeth Ehrenfest Steinglass, Robert Levy

Many have wondered in print about the characteristics and experiences of the women who now seem destined to assume a proportionate share of lawyering responsibilities. How have they experienced law school and legal practice? Have they been welcomed or abused? Have they enjoyed or endured the rigors of qualification for the bar and the challenges of practice? How, if at all, have women affected law schools and legal practice? Do large numbers of women in the profession bring different sensibilities? Differently developed strengths? Different approaches to legal work? If women express dissatisfaction with law school, is it because they are unsuited or ill-prepared for it? Or are they simply more likely to question shortcomings of legal education that inhibit learning for all students?

Realism About Federalism

Frank B. Cross

In this Essay, Professor Cross responds to recent academic efforts to develop a robust judicial federalism doctrine, which advocate increased judicial review of legislative activities and suggest that an expanded federalism doctrine would have significant, negative consequences. Professor Cross challenges the assumption that courts would apply a principled, neutral doctrine of federalism, using empirical evidence to demonstrate that courts consistently have invoked federalism for political or ideological reasons. He suggests that the flexibility of the proposed federalism doctrines would allow judges to manipulate results to achieve ideological ends and that the resulting intrusive judicial review would implicate separation of powers concerns and impair legislative functioning. He argues further that institutional realities-the susceptibility of judges to the concerns and influence of the other branches of government-would prevent such federalism from being a meaningful restriction on the powers of the federal government in any event. Professor Cross concludes that proponents of expanded federalism should focus their efforts on creating a practicable doctrine that is not as vulnerable to ready manipulation and high systemic costs.

Sheff, Segregation, and School Finance Litigation

James E. Ryan

In this Essay, Professor Ryan uses a recent decision by the Connecticut Supreme Court, Sheff v. O’Neill, to explore both the limits and the possibilities of school finance litigation, and to begin an examination of the relationship between school finance and desegregation. Using Sheff as his starting point, Professor Ryan contends that school “finance” litigation need not, and perhaps should not, be solely about money. He suggests that Sheff and the experience of the Hartford schools provide strong evidence of the limited efficacy of increased expenditures in racially and socioeconomically isolated schools. Professor Ryan then explains how the underlying right recognized in school finance cases–the right to an adequate or equal education–can support alternative claims for relief. Specifically, he suggests that these rights can support such nonmonetary remedies as racial and socioeconomic integration and school choice.

Antitrust and Regulatory Federalism: Races Up, Down, and Sideways

Eleanor M. Fox

Walter J. Derenberg Professor of Trade Regulation, New York University School of Law. B.A., 1956, Vassar College; LL.B., 1961, New York University.

In this Essay, Professor Eleanor Fox analyzes regulatory competition and regulatory federalism with respect to competition law. In considering whether some degree of higher-than-national-level regulation is wise Fox observes possible races to the bottom and the top, as well as the race to be the model for the world. She then analyzes regulatory disregard: the tendency of national systems and their actors to disregard their neighbors and to disregard the problem of excessively overlapping regulatory systems. Professor Fox concludes that there is a modest and marginal race to the bottom; that there is also a race to the top; that there is little competition as such among competition regimes to attract investment, but there is competition between the United States and the European Union to export competition law models to the rest of the world; and that in view of nationalistic races and regulatory disregard, there is a case for the internationalization of certain specific procedures and principles.

Sustaining the Moral Surge

John Sexton

Months have passed, commemorations have been held at ground zero, and Congress has declared September 11 a yearly National Day of Remembrance. Surely it will be another date that will live in infamy; no law is needed to ordain that, and no law could change it. But September 11 was, and should be, something more. And after the devastation is cleared, new buildings raised up, and commerce and finance return–all critical to the prosperity of New York and the nation–the other great test will be whether we sustain the moral power surge which moved across the city and this country in response to the terrorist attack.

Professor Lawrence P. King

Daniel G. Collins

Professor Lawrence P. King, who died on April 1 of this year at the age of seventy-two, gave more than a half-century of remarkable service to New York University School of Law. He entered the Law School in September, 1950. Larry, as he was known to all, was both the Articles Editor and the Book Review Editor of the Law Review, a prodigious feat given that it produced eight issues per year. Larry received his LL.B. in 1953, worked for two years as an attorney at Paramount Pictures, and then earned an LL.M. at the University of Michigan. In 1957, Larry took his first teaching position as an Assistant Professor at Wayne State University Law School in Detroit. He returned to New York University School of Law in 1959 as an Associate Professor and became a full Professor in 1993. In later years, Larry was a visiting professor at Berkeley, Temple, and Houston, and at three Israeli universities: Hebrew, Tel Aviv, and Haifa.

The Practical Scholar

David G. Epstein

Larry King was “the practical scholar” for bankruptcy. In 1992, Harry Edwards, a District of Columbia Court of Appeals judge who has been a lecturer at New York University Law School since 1989, provided a definition of “practical scholarship” that defines Larry’s scholarship: “[I]t analyzes the law and the legal system with an aim to instruct attorneys in their consideration of legal problems; to guide judges and other decisionmakers in their resolution of legal disputes; and to advise legislators and other policymakers on law reform.”‘

Master Teacher Remembered

Michael L. Cook

We lost a gifted teacher when Larry King died on April 1. Many constituencies rightfully can claim this loss, including New York University School of Law, where he was the Charles Seligson Professor of Law and where he taught for forty years (he called it the “Law School”); and the world’s legal community: courts, practitioners, and scholars that regularly relied on his clear, practical writings such as the authoritative Collier bankruptcy treatise.

Antitrust and International Regulatory Federalism

Andrew T. Guzman

In this Essay, Andrew Guzman proposes internationalization of antitrust law to supplant current methods of antitrust regulation across national borders. Specifically, instead of relying on local regulation, bilateral agreements between states, or a choice-of-law rule for antitrust enforcement, countries should adopt universal substantive standards. Moreover, Guzman recommends the World Trade Organization (WTO), which already employs a dispute resolution mechanism, as the governing forum for international antitrust issues. There, states can negotiate transfer payments in one international transaction to achieve agreement in another. Upon evaluating Professor Eleanor Fox’s proposal of a stand-alone World Competition Forum that would specialize exclusively in international antitrust negotiations, Guzman concludes that the WTO is the preferred forum. Its dispute resolution system would facilitate substantive cooperation among countries by allowing for concessions exchanged in antitrust as well as in other areas of international relations.

Stare Decisis and the Constitution: An Essay on Constitutional Methodolgy

Richard H. Fallon, Jr.

Professor of Law, Harvard University. B.A., 1975, Yale University; B.A., 1977, Oxford University; J.D., 1980, Yale University.

In this Essay, Professor Richard Fallon explains and defends the constitutional status of stare decisis. In part, Professor Fallon responds to a recent article by Professor Michael Stokes Paulsen, who argues that Supreme Court adherence to precedent is a mere “policy,” not of constitutional stature, that Congress could abolish by statute. In particular, Paulsen argues that Congress could enact legislation denying precedental effect to Supreme Court decisions establishing abortion rights. In reply, Professor Fallon contends that Paulsen’s argument depends on contradictory premises. If stare decisis lacked constitutional stature, then under Paulsen’s methodological assumptions it also would be indefensible as a “policy,” because a mere policy could not legitimately displace results that the Constitution otherwise would require. In defending the constitutional status of stare decisis, Professor Fallon develops arguments based on the text, structure, and history of the Constitution. But he emphasizes that the “legitimacy” of stare decisis is supported, partly independently, by its entrenched status and by the contribution that it makes to the justice and workability of the constitutional regime. More generally, Professor Fallon argues that constitutional legitimacy rests upon the relatively contestable bases of widespread acceptance and reasonable justice, and not upon “consent” to be governed by the written Constitution.

Administrative Law in the Twenty-First Century

Richard B. Stewart

My canvas is dauntingly broad, and I must perforce paint with broad strokes. I will focus on administrative law in relation to government regulation, broadly understood. I will first briefly summarize the central elements of administrative law in the United States over the past century and show how they carry forward, reconfigured, into our current era. I will then assess the emerging new methods for achieving regulatory goals in the face of growing administrative fatigue and the implications of those new methods for administrative law. I will conclude with a précis of the emerging international aspects of administrative law.

Abraham Lincoln’s First Amendment

Geoffrey R. Stone

As we confront the challenges of the “War on Terrorism,” it is useful to look back at our own history to understand how in past crises we have struck the balance between liberty and security. In this Essay, Professor Geoffrey Stone considers how Abraham Lincoln dealt with the conflict between free expression and military necessity during the course of the Civil War. Although we tend to think of Lincoln’s suspension of habeas corpus as the paramount civil liberties issue in this era (apart from slavery), Professor Stone explores how Lincoln, facing often severe criticism of his administration, struggled to balance free speech rights against the imperiled security of the Union.

Transparency and Participation in Criminal Procedure

Stephanos Bibas

A great gulf divides insiders and outsiders in the criminal justice system. The insiders who run the criminal justice system—judges, police, and especially prosecutors—have information, power, and self-interests that greatly influence the criminal justice system’s process and outcomes. Outsiders—crime victims, bystanders, and most of the general public— find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result of this gulf, a spiral ensues: Insiders twist rules as they see fit, outsiders try to constrain them through new rules, and insiders find ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s substantive goals. The gulf clouds the law’s deterrent and expressive messages, as well as its efficacy in healing victims; it impairs trust in and the legitimacy of the law; it provokes increasingly draconian reactions by outsiders; and it hinders public monitoring of agency costs. The most promising solutions are to inform crime victims and other affected locals better and to give them larger roles in criminal justice. It also might be possible to do a better job monitoring and checking insiders, but the prospects for empowering and educating the general public are dim.

Questioning the Efficiency of Summary Judgment

D. Theodore Rave

The primary justification for summary judgment is efficiency, but the motion’s efficiency has been largely assumed. Avoiding trials reduces costs, but that savings is only realized when the motion is granted. This Note offers a framework for analyzing the efficiency of summary judgment. If the cost of trials avoided does not exceed the cost of summary judgment motions filed, then summary judgment is inefficient. Modern doctrine places a low production burden on defendants moving for summary judgment and a high production burden on plaintiffs opposing the motion, creating incentives for defendants to file many motions and for plaintiffs to incur substantial costs in opposing them. If the motion is not granted with enough frequency and does not have a positive impact on the settlement rate, then its availability and use may cost more than the trials it avoids. Drawing on available empirical data and assumptions based on the incentives of the parties, this Note goes on to lay out some of the conditions necessary for summary judgment to be efficient and concludes with a call for more empirical investigation into the success rate of summary judgment motions and the costs of litigation.

Automating Contract Law

George S. Geis

The study of contract law is undergoing a difficult transition as it moves from the theoretical to the empirical. Over the past few decades scholars have focused largely on developing economic theories that offer a normative approach to setting the legal rules governing voluntary exchange. The time has now come to test whether these theories provide a meaningful basis for choosing our laws—in other words, to ask whether empirical data supports the theoretical models that contracts scholars have posited. Unfortunately, this type of empirical analysis has proven exceptionally difficult to conduct, and some commentators are beginning to question whether it will ever be possible to test and revise our economic theories of contract in a meaningful manner. Yet the problem of harnessing information to support complex decisions is not unique to contract law. This Essay explores the possibility that recent technological developments from the field of organizational knowledge management—including advances in meaning-based computing algorithms—will soon make it easier to conduct empirical work in contract law on a much larger scale.

Our Agnostic Constitution

Steven D. Smith

According to an argument heard a good deal lately, the fact that the Constitution says nothing about God means that we have a “godless Constitution,” and that fact in turn entails that government and politics in the United States must be godless or, in the more usual locution, secular. The commitment to secular government in turn is thought to preclude governmental sponsorship of religious expressions (such as the national motto “In God We Trust”) or of religious symbols (such as monuments to the Ten Commandments). This Essay argues that this interpretation of our “godless” Constitution is importantly correct—but even more importantly mistaken. It is true that the Founders purposefully made no reference to a deity—in contrast to many other state and national constitutions. Thus, the Constitution is godless or, more precisely, agnostic. But the agnosticism of the Constitution does not mean that governments operating under the Constitution must also be agnostic or that they must refrain from religious expression. On the contrary, paradoxical though this may initially seem, it is precisely the Constitution’s agnosticism that permits governments to engage in such expression. Drawing a comparison with personal agnosticism, this Essay contends that, similar to a person who both believes and doubts at different cognitive levels, the political community too can affirm particular beliefs (on religious issues, for example) at one jurisdictional or juridical level while remaining noncommittal on other, more constitutive levels. Such “layered believing” can offer a valuable strategy for creating and maintaining political community in the midst of great diversity.

Rethinking the Federal Role in State Criminal Justice

Joseph L. Hoffmann, Nancy J. King

This Essay argues that federal habeas review of state criminal cases squanders resources that the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners who have been convicted of noncapital crimes and offers no realistic hope of relief for those who do reach federal court. As a means of correcting or deterring constitutional error in noncapital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court’s most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services. This approach can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

Did the Madisonian Compromise Survive Detention at Guantanamo?

Lumen N. Mulligan

This Essay takes up the Court’s less-heralded second holding in Boumediene v. Bush—that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this aspect of the opinion has gone largely unnoticed, it is inconsistent with the Madisonian Compromise—the standard view that the Constitution does not require Congress to create or to vest jurisdiction in any federal court except the Supreme Court. In fact, it appears that the Court adopted, sub silentio, the position famously advanced by Justice Story in 1816 that the Constitution requires Congress to vest the lower federal courts with jurisdiction to hear executive-detention habeas corpus cases. In considering alternatives to this bold break with long-settled constitutional doctrine, this Essay examines newly uncovered opinions from Supreme Court Justices to determine whether Justices acting in chambers remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address this issue directly, and, finally, the degree to which the need for an independent finder of fact is well grounded in constitutional doctrine. This Essay concludes that Boumediene’s rejection of the Madisonian Compromise, rather than its decision with respect to the scope of the habeas writ, will come to be its longest-lived legacy for federal courts law.

Lectures

When Judges and Justices Throw Out Tools: Judicial Activism in Rucho v. Common Cause

Hon. James Andrew Wynn

Madison Lecture

In this Lecture, I offer my own definition of judicial activism: In deciding a case, a court or judge engages in judicial activism when the court or judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case. In other words, judicial activism involves throwing a long-recognized decisional tool—or, in Justice Marshall’s words, “mediating principle[]”—out of the judicial toolkit. Under my definition, for example, the Supreme Court would engage in judicial activism if it refused without explanation to apply the doctrine of stare decisis, given that stare decisis stands at the center of the common-law tradition we inherited from England and has been applied since the earliest days of the republic.

Why does such behavior amount to judicial activism? Because refusing to apply a long-recognized mediating principle eliminates a constraint on a court’s exercise of its decisional discretion. When judges refuse to apply a long-standing interpretive tool, they necessarily expand the universe of situations in which they, in Judge Posner’s words, “bring [their] own policy preferences to bear in order to decide the case at hand.”

To be sure, there necessarily are times when judges must rely on their own policy preferences to decide a case. But, from my perspective, simply ignoring without comment a well-established mediating principle generally applicable in the type of case at issue—or justifying the act of discarding a fundamental principle by relying on a legal or policy argument as to the undesirability of that principle—is a fundamentally activist enterprise.

My Lecture will proceed as follows. First, I survey the origin of the term “judicial activism” and the various ways it has been defined by judges and scholars. Those definitions generally fall into two categories: those focused on outcomes and those focused on the process a judge applies in reaching an outcome. Second, I set forth my own definition of judicial activism—which falls into the process category—and explain why I believe that definition gives meaning to the principal concern animating accusations of judicial activism: that the judiciary is stepping outside of its proper role and unjustifiably deciding cases based on its own policy preferences. Third, I explain some means by which activism (as I define it) enters judicial decisionmaking. Finally, I apply my definition to demonstrate why the judicial interpretive methodology of textualism and the recent Supreme Court partisan gerrymandering decision, Rucho v. Common Cause, are stark examples of judicial activist behavior.

Judicial Independence, Collegiality, and the Problem of Dissent in Multi-Member Courts

The Honorable Bernice B. Donald

Threats to judicial independence are most commonly viewed as arising either from politically motivated depredations by other branches of government, or from improper inducements or coercion from individuals or groups in the wider society. Both types of threats are external to the court. What of the internal environment within which judges operate, particularly the immediate environment comprised of their colleagues on the bench? Drawing on a judicial career spanning thirty-seven years, including fifteen as a U.S. District Court judge and the past seven in my present position on the U.S. Court of Appeals for the Sixth Circuit, as well as on legal scholarship and the perspectives of other jurists past and present, I will address what one scholar calls the “complicated interdependent decisions” faced by judges on multi-member courts. This Lecture will explore the often complex calculus and subtle intrajudicial considerations that go into a judge’s decision whether—and, if so, how—to dissent in a particular case. I encourage reflection both on the costs that dissent exacts on the individual judge and on the court as a whole, and on the enormous value it can have as an expression of legal conscience and even, on occasion, as a voice of prophecy pointing to future change in the law. Ultimately, I view the right to dissent as precious, and a pillar of judicial independence.

The Art of Judging

The Honorable Justice Stewart G. Pollock

William J. Brennan, Jr. Lecture

In the second annual William J. Brennan, Jr. Lecture New Jersey Supreme Court Justice Stewart G. Pollock explores the relationship between art and adjudication. The separation of powers, the federalist system, and the inherent constraints of the common law confine state courts. Notwithstanding those constraints, state courts have demonstrated creativity when interpreting state statutes and constitutions and when adapting the common law to changing conditions. Thus, Justice Pollock finds artistry in the work of state courts. He begins by exploring creativity in statutory interpretation. Then, Justice Pollock examines two areas of substantive law of great public concern: public-school-finance litigation under state constitutions and the common-law redefinition of the modem family. Justice Pollock demonstrates how state appellate courts, through public-school-finance litigation, have shaped the constitutional right to a public-school education. Justice Pollock then discusses how state courts have reacted to the changing composition of the American family. By recognizing these changes, state courts have redefined the family in areas as diverse as zoning ordinances, surrogacy agreements, and same-sex marriages. Common to all these endeavors is protection of the inherent dignity of the individual. Justice Pollock concludes that an appreciation of the similarities between art and judging may lead to a better understanding of the judicial process.

States’ Rights–And Wrongs

Stanley Mosk

Brennan Lecture

When I look back on the origins of our nation, I feel both a deep sense of pride and a sense of apprehension for the present and the future. Habeas corpus is being undermined, legislatively and judicially; sentencing is suggesting a newly devised theory of “nothing succeeds like excess”; and there is a constant flow of suggestions for amending the Constitution. One is impelled to ask, as Archibald MacLeish did so plaintively: “Where has all the grandeur gone?”

How James Madison Interpreted the Constitution

The Honorable Richard S. Arnold

Madison Lecture

In this Madison Lecture, Chief Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit explores the subject of constitutional interpretation as practiced by the eponymous James Madison. Following Madison’s public arguments and private statements through crucial early American debates over federal powers, Judge Arnold finds that the “Father of the Constitution” refused to take advantage of his own formative contributions to the Constitution. On the contrary, Madison sought constitutional authority in the citizenry, as exercised through state ratifying conventions and through the precedential effect of deliberative legislative action. Arnold reminds us that Madison was a consummate politician at a time when the occupation was not yet a pejorative epithet, but public officeholders were even then subject to harsh personal criticism that rivals if not surpasses the political vitriol of our times. Madison nevertheless developed a consistent, yet flexible, view of constitutional interpretation that can still enlighten he constitutional debates of today.

Capacity and Respect: A Perspective on the Historic Role of the State Courts in the Federal System

The Honorable Ellen A. Peters

William J. Brennan, Jr. Lecture

Twenty years ago, Justice William J. Brennan sounded a clarion call to lawyers and judges not to overlook the capacity of state law, especially state constitutional law, to assist in the pursuit of justice for all. Today, the judges and justices of state courts have taken that message to heart by undertaking innovative measures to protect individual rights through state constitutions and through independent interpretations of the Federal Constitution. Despite this emerging trend, litigators, law reviews, and legal scholars have continued to focus on the federal system. In this Brennan Lecture, Senior Judge Ellen A. Peters of the Supreme Court of Connecticut responds to this not-so-benign neglect, observing that state courts determine the totality of rights of the vast majority of litigants, draw on a broad reservoir of common law principles and remedies, and play an integral role in maintaining our federalist system. Developing this last point, Judge Peters examines tie history of state courts in the federal system the extent to which state courts may invoke neutral procedural and jurisdictional rules in the face of arguably different federal mandates, and the implications for the role of the states of recent developments in United States Supreme Court jurisprudence.

Against Constitutional Theory

The Honorable Richard A. Posner

Madison Lecture

In this Madison Lecture, Chief Judge Posner advocates a pragmatic approach to constitutional decisionmaking, criticizing constitutional theorists who conceal their normative goals in vague and unworkable principles of interpretation. After discussing specific constitutional theories as well as the legal academy’s increasing reliance on theory in general Posner, demonstrates the ineffectuality of constitutional theory, using the Supreme Court’s decisions in United States v. Virginia and Romer v. Evans as examples. He argues not that these cases were necessarily wrongly decided, but that the opinions lack the empirical support that is crucial to sound constitutional adjudication. Posner urges law professors to focus their scholarship on forms of inquiry that will actually prove useful to judges and concludes by asking that judges themselves recognize and acknowledge the limitations of their empirical knowledge.

State Courts and Democracy: The Role of State Courts in the Battle for Inclusive Participation in the Electoral Process

The Honorable George Bundy Smith

Brennan Lecture

As recently as 1962, the United States Supreme Court declined to rule on challenges to legislative apportionment schemes that created grossly disproportionate electoral districts. When, in the seminal decision Baker v. Carr, the Supreme Court held such challenges to be justiciable, the federal courts in this country took on a new and important role. In this Brennan Lecture, Judge Smith explores the context in which this reapportionment “revolution” emerged and developed, in particular highlighting the symbiotic relationship between the reapportionment struggle and the struggle for African American civil rights.

Smith turns his attention to the role state courts have played in these twin revolutions. He begins by noting that the federal reapportionment decisions had important state court antecedents. He then argues that contemporary judges–both state and federal–play two crucial roles in the struggle for inclusive participation in the electoral process. First, judges are required to maintain constant vigilance to ensure that the level playing field promised by Justice Brennan in Baker v. Carr becomes and remains a reality. Second, judges must ensure that the Federal Constitution, state constitutions, and the Voting Rights Act are enforced to prevent discrimination against African Americans and other minorities. As Judge Smith concludes, successful performance of each of these two functions is necessary to ensure that African Americans and other historically oppressed minorities become a meaningful part of American democracy.

The Anatomy of an Execution: Fairness vs. “Process”

The Honorable Stephen Reinhardt

Madison Lecture

In this Madison Lecture, Judge Stephen Reinhardt tells the story of the case of Thomas Thompson, a man without a prior criminal record who was executed in California in July of 1998 despite substantial doubt about his guilt of capital murder and an unrefuted decision by the en banc court of the Ninth Circuit that his trial was blatantly unconstitutional. The Ninth Circuit’s decision was based on egregious conduct of the prosecution and ineffective assistance of Thompson’s counsel. The district judge previously had reversed Thompson’s capital sentence on the latter ground.

Judge Reinhardt provides a firsthand account of the unusual events that took place within the Ninth Circuit, including the passing of the deadline within which a judge could request an en banc rehearing; the extraordinary rejection by three judges of a request by colleagues for an extension of time within which to vote on rehearing; a good faith effort, that backfired, by a majority of the Ninth Circuit to comply with the Supreme Court’s arcane procedural rules; and, ultimately, a dramatic en banc rehearing in which the Ninth Circuit ruled in Thompson’s favor. The story then turns to the United States Supreme Court, which, in a wholly unprecedented action, held that the Ninth Circuit’s en banc hearing was invalid because it came too late and offended purported principles of comity and finality, abstract concerns that increasingly predominate over substantive rights in the jurisprudence of the Rehnquist Court.

By telling the story from start to finish, including a report on the factual errors made by the Supreme Court, Judge Reinhardt illustrates the dramatic consequences of the current Court’s elevation of procedural rules over substantive justice and the dictates of the Constitution, particularly in death penalty cases. In Judge Reinhardt’s opinion, the Court’s philosophy in this instance cost Thomas Thompson his life and in its general application seriously tarnishes the integrity and reputation of the American justice system.

Derrick Bell’s Toolkit—Fit to Dismantle That Famous House

Richard Delgado

Derrick Bell Lecture

Does United States antidiscrimination law embrace a black/white binary paradigm of race in which other, nonblack minority groups must compare their treatment to that of African Americans in order to gain redress? In this Derrick Bell Lecture, Professor Richard Delgado argues that it does, and that other minorities also fall from time to time into the trap of exceptionalism, placing their own experiences at the center of discussion. Taking as his text a recent chronicle by Derrick Bell, Bluebeard’s Castle, Professor Delgado argues that narrow binary thinking—regardless of the group that engages in it—weakens solidarity, reduces opportunities for coalition, deprives one group of the benefits of the others’ experiences, makes one overly dependent on the approval of the white establishment; and sets one up for ultimate disappointment. The black/white binary, in short is bad for blacks, just as her foolish fixation on the gloomy noble of operatic fame finally doomed Judith, the heroine of Bluebeard’s Castle.

Women and the Constitution: Where We Are at the End of the Century

The Honorable Martha Craig Daughtrey

Madison Lecture

In this Madison Lecture, Judge Martha Craig Daughtrey addresses the evolution of the women’s rights movement and the Equal Rights Amendment (ERA). Judge Daughtrey traces the history of the ERA from its passage by Congress through its eventual failure during the state ratification process, and considers the parallel development of an equal rights jurisprudence based on the Equal Protection Clause of the Fourteenth Amendment, particularly noting the successes of Justice Ruth Bader Ginsburg in arguing cases before the Supreme Court. After examining this jurisprudence, as well as ensuing changes in social mores and the composition of the Court Judge Daughtrey asks whether a renewed effort to pass and ratify the ERA is necessary.

Sovereignty in Comparative Perspective: Constitutionalism in Britain and America

Lord Irvine of Lairg

Lord High Chancellor, United Kingdom of Great Britain and Northern Ireland.

Madison Lecture

In this James Madison Lecture series, the Lord Chancellor, Lord Irvine of Lairg, observes that the American system of constitutional supremacy and judicial review shares many common features with the British unwritten constitution’s emphasis on parliamentary sovereignty without judicial review. While the two systems are often described as polar opposites, Lord Irvine argues that both operate in a context of democratic government and translate substantially identical commitments to popular sovereignty into distinct, yet related, approaches to constitutionalism.

Our Democratic Constitution

The Honorable Stephen Breyer

Madison Lecture

In this James Madison Lecture, Justice Breyer presents an approach to constitutional interpretation that places considerable weight upon the consequences of judicial decisionmaking. Eschewing an approach that relies solely on language, history, tradition, and precedent, Justice Breyer uses five contemporary examples to demonstrate how his concept of “consequential” constitutional interpretation might work in practice. Justice Breyer argues that this approach is more faithful to the principles that animated our Founding Fathers, encourages greater public participation in our democratic government, and would create a constitutional system that better promotes governmental solutions consistent with community needs and individual dignity.

Judicial Methodology, Southern School Desegregation, and the Rule of Law

The Honorable David S. Tatel

Madison Lecture

Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”‘ This debate often has focused on Supreme Court decisions involving some of our nation’s most historic events: the Court’s 1873 evisceration of the Fourteenth Amendment’s Privileges or Immunities Clause, its use of substantive due process to strike down progressive legislation at the turn of the century, its invalidation of key New Deal programs, and its opinion in Roe v. Wade are but a few of the decisions that have reignited the controversy over the meaning and risks of “judicial activism.”

Challenges Facing an Independent Judiciary

Ronald M. George, Chief Justice of California

Challenges to an independent judiciary are not unique to our time, but recent events have highlighted the difficulties facing a branch that can neither enforce its own decisions nor fund its own operations. In this installment of the annual William J. Brennan, Jr. Lecture on State Courts and Social Justice, I recount my state’s pragmatic approach to securing the institutional independence of its judiciary. To shore up the independence of the Western world’s largest court system, California began by making sweeping structural changes. In this Lecture, I discuss three of these structural reforms in detail: shifting of funding responsibilities from the counties to the state, transfer of ownership of local courthouse facilities to the state, and consolidation of different trial court levels into a single, unified whole. These changes have drastically increased the institutional independence of California’s judiciary and helped to solidify its status as coequal to its sister branches. I further argue that these basic structural changes also bear the promise of greater decisionmaking independence for judges in the state of California.

Our 18th Century Constitution in the 21st Century World

The Honorable Diane P. Wood

Madison Lecture

In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the original intent of those who wrote the Constitution or take into consideration improper foreign influences. She argues the necessity of an “unwritten Constitution” since a literalist approach to interpretation would lead to unworkable or even absurd results in the modern context, and since restricting constitutional interpretation to literal readings would mean that the Constitution has outlived its usefulness. Judges may “find” unwritten constitutional rules by using evolving notions of a decent society to interpret broad constitutional language broadly; acknowledging that certain liberties are so fundamental that no governmental entity may deny them; acknowledging that much of the Bill of Rights applies to states through selective incorporation; and inferring principles from the structure of the Constitution and pre-constitutional understandings.

The New Role of State Supreme Courts as Engines of Court Reform

Randall T. Shepard, Chief Justice of Indiana

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, the Honorable Randall T. Shepard examines the growing role of state supreme courts in remaking the American system of justice. The vast size of the state court system, the flexibility of state rulemaking authority, and recent changes in the way state courts are financed have placed these high courts at the forefront of efforts to administer and reform their states’ court systems. Chief Justice Shepard explores three major areas of court reform led by state supreme courts. First, state high courts have reformed the American jury by making it more inclusive and representative, and by improving its decisionmaking capabilities. Second, these courts have implemented new initiatives to ensure equal access to justice by providing legal assistance to low-income individuals in civil cases, creating pro bono programs, and assisting pro se litigants. Third, state supreme courts have fostered equal opportunity by addressing bias and disparate treatment within the court system, and by working to ensure that the legal profession itself is open to all people. Finally, Chief Justice Shepard describes a range of other ways in which state supreme courts have been remaking their states’ court systems, from creating specialized courts to training judges in the sciences. In a profession that is fond of tradition and slow to change, many of these reforms could only proceed with leadership from state high courts.

Judging Under the Constitution: Dicta About Dicta

Pierre N. Leval

Madison Lecture

In the New York University School of Law’s annual James Madison Lecture, Judge Pierre N. Leval discusses the increasing failure of courts to distinguish between dictum and holding. Although not opposed to the use of dictum to clarify complicated subject matter and provide guidance to future courts, Judge Levalconsidered precedent. Judge Leval further argues that the Supreme Court’s new command in Saucier v. Katz that, before dismissing a constitutional tort suit by reason of good faith immunity, a court must first declare in dictum whether the alleged conduct violates the Constitution, is particularly ill-advised.

The “Marriage Gap”: A Case for Strengthening Marriage in the 21st Century

Leah Ward Sears, Chief Justice of Georgia

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, Leah Ward Sears, Chief Justice of the Georgia Supreme Court, reflects upon the state and significance of marriage as we head into the twenty-first century. Chief Justice Sears calls attention to social science evidence that shows that the health of the institution of marriage is directly related to the health of our children and communities. Yet today, alarming numbers of children do not have the support of two married parents in the home. Single parenthood, divorce, and cohabitation are at all-time highs, and a great many of these families are failing. Through a review of social science evidence, Chief Justice Sears shows the far-reaching implications that family fragmentation, a potentially self-perpetuating phenomenon, can have for judicial backlog, child well-being, and community health. She unearths an opportunity gap that renders children from fragmented families less likely to succeed and communities where marriage is the exception more prone to violence and crime. Given these dramatic family transformations and their implications, Chief Justice Sears discusses how society, through its laws, should respond. Emphasizing the emotional, financial, and social benefits flowing to children and communities from marriage, Chief Justice Sears suggests dedicating a renewed vigor to exploring ways that law can promote the benefits of marriage. While she cautions that these changes should not be implemented to the detriment of existing legal policies that protect and support children regardless of the family form they are born into, she challenges society to renew its commitment to marriage in this country, thereby manifesting the United States’ commitment to principles of equality and opportunity for all children.

Judge Henry Friendly and the Mirror of Constitutional Law

Michael Boudin

Madison Lecture

Henry J. Friendly was one of the nation’s preeminent appellate judges. Judge Michael Boudin, once a law clerk to Judge Friendly, describes Judge Friendly’s career and judicial outlook in the New York University School of Law’s annual James Madison Lecture. Drawing upon Judge Friendly’s constitutional writings and decisions, the lecture touches upon Friendly’s gifts of mind, energy, and writing ability, and certain of his judicial characteristics: his attitude toward precedent and other constraints, his practical judgment, his intellectual rigor, and his essential moderation.

Evidence-Based Judicial Discretion: Promoting Public Safety Through State Sentencing Reform

The Honorable Michael A. Wolff

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, the Honorable Michael Wolff offers a new way of thinking about sentencing. Instead of attempting to limit judicial discretion and increase incarceration, states should aim to reduce recidivism in order to make our communities safer. Judge Wolff uses the example of Missouri’s sentencing reforms to argue that states should adopt evidence-based sentencing, in which the effectiveness of different sentences and treatment programs are regularly evaluated. In pre-sentencing investigative reports, probation officers should attempt to quantify—based on historical data—the risk the offender poses to the community and the specific treatment that would be most likely to prevent reoffending. Judges, on their own, lack the resources to implement all of these recommendations; probation officers and others involved in sentencing should receive the same information—risk assessment data—and their recommendations should become more influential as they gain expertise.

Toward One America: A Vision in Law

The Honorable J. Harvie Wilkinson III

Madison Lecture

In his Madison Lecture, Judge Wilkinson urges a new purpose for American law: the explicit promotion of a stronger sense of national cohesion and unity. He argues that the judicial branch should actively seek to promote this nationalizing purpose and suggests seven different ways for federal courts to do so. He contends further that a nationalizing mission for law is needed at this moment in American history to counteract the demographic divisions and polarizing tendencies of our polity. This purpose need not entail the abdication of traditional values of judicial restraint, should not mean the abandonment of the traditional American credo of unity through pluralism, and must not require the sacrifice of the law’s historic commitment to the preservation of order and the protection of liberty. But the need for a judicial commitment to foster a stronger American identity is clear. The day when courts and judges could be indifferent to the dangers of national fragmentation and disunion is long gone.

The Reach of State Corporate Law Beyond State Borders: Reflections Upon Federalism

The Honorable Jack B. Jacobs

Brennan Lecture

In this speech, delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, the Honorable Jack B. Jacobs demonstrates that state corporate law sometimes acquires an extraterritorial reach. The federalist model of corporation law assumes that each state’s law only reaches to that state’s border, but reality has diverged from that model through state anti-takeover statutes, the internal affairs doctrine, and state “corporate outreach” statutes that impose internal governance requirements on companies incorporated in other states. Anti-takeover statutes are essentially grounded upon the internal affairs doctrine, which holds that such affairs are governed by a company’s state of incorporation. But the corporate outreach statutes attempt to supersede the law of the state of incorporation, exposing companies to conflicting internal governance requirements. The Supreme Court could resolve this conflict by deeming the internal affairs doctrine either a choice-of-law rule or a rule of constitutional law. The former choice could lead to economic disruption, while the latter would increase interstate competition for incorporation business and sustain the current diversity of legal choices available to corporations.

Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts

The Honorable Marsha S. Berzon

Madison Lecture

In this speech, delivered as the annual James Madison Lecture, Judge Marsha Berzon discusses the availability of judicial remedies for violations of the Constitution. Judge Berzon reflects on the federal courts’ tradition of allowing litigants to proceed directly under the Constitution—that is, without a statutorily based cause of action. This is a tradition that extends much further than the mid-twentieth century cases most commonly associated with affirmative constitutional litigation— Brown, Bolling, & Bivens, for example—and has its roots in cases from the nineteenth and early twentieth centuries. Against this long historical tradition of courts recognizing nonexpress causes of action for violations of the Constitution, Judge Berzon surveys the modern Supreme Court’s jurisprudence, a jurisprudence that sometimes requires constitutional litigants to base their claims on the same sort of clear congressional intent to permit judicial redress now required before courts will recognize so-called “implied” statutory causes of action. Judge Berzon suggests that requiring litigants seeking to enforce constitutional norms to point to evidence of congressional intent regarding the availability of judicial redress misapplies separation-of-powers concerns.

In Goodridge’s Wake: Reflections on the Political, Public, and Personal Repercussions of the Massachusetts Same-Sex Marriage Cases

The Honorable Roderick L. Ireland

Brennan Lecture

In the Sixteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Roderick L. Ireland, Senior Associate Justice of the Massachusetts Supreme Judicial Court, discusses the seminal case Goodridge v. Department of Public Health and a judge’s role in controversial decisions. Justice Ireland explains
the rationale behind his majority vote in Goodridge, as well as his dissent in Cote-Whitacre v. Department of Public Health, and the extreme public backlash that followed the same-sex marriage cases. Through the personal lens of his own experience dealing with the extreme reaction to Goodridge, Justice Ireland addresses how judges should handle such controversial cases while remaining true to the role of the judiciary.

Reading the Fourth Amendment: Guidance from the Mischief that Gave it Birth

The Honorable M. Blane Michael

Madison Lecture

The Supreme Court begins the twenty-first century with increasing use of a cramped approach to Fourth Amendment interpretation. That approach, championed by Justice Scalia, gives determinative weight to outdated common law rules from the framing era in assessing the reasonableness of searches and seizures. In the annual James Madison Lecture, Judge Blane Michael urges a fundamentally different—yet still traditional— approach. He argues that Fourth Amendment interpretation should be guided by the basic lesson learned from the mischief that gave birth to the Amendment in 1791: Namely, there is a need for constitutional protection against intrusive searches of houses and private papers carried out under grants of open-ended discretion to searching officers. This need for Fourth Amendment protection remains compelling in today’s ever more interconnected world. Above all, the Court should not weaken the Fourth Amendment’s protection by exclusive use of antiquated common law rules from the framing era.

Madison Lecture: Living Our Traditions

The Honorable Robert H. Henry

In the annual James Madison Lecture, Robert Henry, former Chief Judge of the
United States Court of Appeals for the Tenth Circuit, explores Justice John
Marshall Harlan II’s notable dissent in Poe v. Ullman. President Henry carefully
examines Justice Harlan’s method of constitutional interpretation. Refusing to
adopt a “literalistic” reading of the Constitution and instead looking to the “history
and purposes” of a particular constitutional provision, Justice Harlan’s approach
serves as a source of both flexibility and restraint. Of particular importance is
Justice Harlan’s recognition of the role that “living” traditions play in supplying
meaning to the concept of due process of law. What emerges from this probing
review of Justice Harlan’s Poe dissent is a moderate and thoughtful response to
originalism.

Evaluating Eyewitness Identification in the 21st Century

The Honorable Stuart Rabner

In the Eighteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Stuart Rabner, Chief Justice of the New Jersey Supreme Court, discusses the court’s recent decision in State v. Henderson. In Henderson, the court revised the longstanding legal framework for testing the reliability of eyewitness identifications. Justice Rabner discusses the case law underlying the traditional framework, the social science that prompted the court’s decision, and the revised framework now in place. He concludes by emphasizing the importance of eyewitness identification in our criminal justice system and calling for continued judicial attention to accepted scientific evidence on eyewitness reliability.

Statutes

The Honorable Robert A. Katzmann

Madison Lecture

In his James Madison Lecture, Judge Robert A. Katzmann argues that federal courts have much to learn from Congress and agencies about how statutes should be interpreted. In the voluminous discussion of how courts should construe statutes, there has generally been little consideration given to an appreciation of how Congress actually functions; how Congress signals its meaning; and what Congress expects of those interpreting its laws. In examining that lawmaking process, Judge Katzmann looks to how legislators signal their legislative meaning to the first inter- preters of statutes—agencies—and to how agencies regard Congress’s work product in interpreting and executing the law. He contends that Congress intends that its work be understood through its institutional processes and reliable legisla- tive history. In our constitutional system in which Congress is charged with enacting laws, the methods by which Congress makes its purposes known—through text and reliable accompanying materials—should be respected, lest the integrity of legislation be undermined. Agencies well appreciate and are responsive to Congress’s perspective that such materials are essential to construing statutes. By understanding statutory interpretation as an enterprise involving other institutions, we can better address the question of how courts ought to interpret statutes. Against that background, Judge Katzmann examines two approaches to the judicial inter- pretation of statutes—purposivism and textualism—and concludes with a discus- sion of practical ways in which Congress may better signal its meaning and how courts may better inform Congress of the problems courts identify in the statutes they review.

Overturning Precedent: The Case for Judicial Activism in Reengineering State Courts

The Honorable Paul J. De Muniz

Brennan Lecture

In the Seventeenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Paul J. De Muniz, Chief Justice of the Oregon Supreme Court, discusses the challenges confronting state judiciaries in the face of economic crises and corresponding state budget cuts. Chief Justice De Muniz urges state court leaders to adopt the concept of reengineering to overhaul antiquated court management processes in favor of more efficient alternatives. Drawing from the Oregon state judiciary’s own efforts, Chief Justice De Muniz identifies court governance structures, case administration, essential court functions, and leadership as key targets in any successful reengineering endeavor.

Liberty and Justice for Some: How the Legal System Falls Short in Protecting Basic Rights

The Honorable Wallace B. Jefferson

The legal community has long recognized that indigent citizens often lack access to the judicial system. Pro bono programs and legal aid organizations have attempted to address this issue. In the Nineteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Wallace B. Jefferson, former Chief Justice of the Supreme Court of Texas, argues that there are barriers to justice not only for the indigent but also for middle-class Americans. He explores how our most valuable rights are often the least protected. Tenants subject to eviction rarely have counsel, veterans wait years to receive earned benefits, and juveniles cannot invoke the Sixth Amendment to challenge civil fines. Chief Justice Jefferson explores reforms and alternatives that are available when traditional paths to justice are blocked, and he highlights some of the obstacles faced in creating these alternatives.

Madison Lecture: Aliens and the Constitution

The Honorable Karen Nelson Moore

Beginning with this nation’s founding and continuing today, courts and political leaders have grappled with difficult questions as to the proper treatment of aliens— those individuals either living here or interacting with the government, but not bearing the title of “U.S. citizen.” In the annual James Madison Lecture, Judge Karen Nelson Moore explores the protections afforded to aliens by our Constitution, tracing those protections and their limitations across the many disparate legal contexts in which questions regarding aliens’ constitutional rights arise. Although the extent to which aliens possess constitutional rights varies with the closeness of their ties to this country, she explains that this single variable cannot account for the many nuances and tensions in federal jurisprudence relating to aliens’ constitutional rights. Closeness, after all, can be measured across multiple dimensions: immigration status, physical proximity to the United States (or to its borders), lawfulness of presence, and allegiance to the country.

Judge Moore first tackles the complicated meaning of alienage, discussing its conceptual definition separately with respect to the text of the Constitution, immigration law, and national security. She then considers the extent to which the Equal Protection Clause of the Fourteenth Amendment limits the government’s ability to draw distinctions between different classes of aliens. Possible differential treatment among classes of aliens presents complex constitutional questions that remain unresolved, particularly as those questions relate to the treatment of aliens unlawfully present in this country. The rights of this group are the most in flux: These aliens’ unauthorized presence in the country, combined with their close ties to the political community, makes them difficult to fit into existing legal categories.

The criminal procedure rights of aliens under the Fourth, Fifth, and Sixth Amendments are also considered, followed by a discussion of aliens’ due process rights with respect to civil litigation, immigration proceedings, and alien-enemy detention. Judge Moore highlights those areas at the outer reaches of current doctrine—the extraterritorial application of constitutional protections and the extent of executive power to combat terrorism. She articulates themes present in constitutional jurisprudence as it relates to aliens, providing a broad-lens view of this vast and complicated area of law.

The Judiciary as the Leader of the Access-to-Justice Revolution

The Honorable Jonathan Lippman

Brennan Lecture

The subject of my remarks this evening is how the judiciary, conceptually and in practice, should be and is in fact the leader of the access-to-justice revolution that is taking place in our state and in our country. It is no secret that our nation faces a crisis in access to justice. The distressing lack of civil legal aid for the poor is one of the most daunting challenges facing the justice system today, but all of the players—the providers, the academy, the profession as a whole, and in particular the judiciary—are increasingly and dramatically confronting this crisis and taking action to balance the scales of justice, to guarantee the rights and liberties of all, and to preserve the rule of law.

As I will discuss in detail tonight, New York’s judiciary has taken a leadership role in the access-to-justice reform—securing substantial funding in the judiciary budget for civil legal services; encouraging pro bono work by the bar; asking aspiring lawyers to provide legal assistance to those most in need; harnessing the legal talents of baby boomers and corporate counsel; and exploring novel methods of delivering legal services, including the use of nonlawyers to provide assistance inside and outside the courtroom. The judiciary’s leadership role is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility of the judiciary and its leadership. This approach utilizes all of the financial and programmatic resources available to the judicial branch, along with the great talent and energy of our partners in the legal profession, academia, and legal services communities.

Our Broken Death Penalty

The Honorable William A. Fletcher

Madison Lecture

This lecture is titled Our Broken Death Penalty. But the title is misleading, for it suggests that our death penalty might, at some earlier time, have been something other than broken. It has always been broken. And, as you will hear tonight, it cannot be repaired.

Access to Justice

The Honorable Chase T. Rogers

New Approaches to Ensure Meaningful Participation

This Lecture discusses innovative approaches that courts are employing and developing to ensure that all participants in court proceedings have meaningful access to justice. Approaches include making the most of technological advancements to provide electronic access to information and to promote an understanding of the legal process, working with the legal community to provide representation to self-represented parties, and examining the legal process in order to simplify procedures, better manage cases, control costs, and provide workable alternatives to traditional methods for resolving disputes.

Judicial Governance and Judicial Independence

The Honorable Anthony J. Scirica

Madison Lecture

This Lecture examines judicial independence, judicial accountability, and judicial governance. I discuss the role the current system of judicial self-governance plays in ensuring both accountability and independence—two sides of the same coin. Yet, two recent legislative proposals threaten not only decisional independence but also the institutional independence of the judicial branch itself. The first calls for an inspector general for the federal judiciary and the second proposes to regulate Supreme Court recusals. This Lecture discusses how the inspector general and Supreme Court recusal bills would lead to significant changes in the way the judiciary functions, and concludes these changes would nonetheless be insignificant compared to the threat they pose to the decisional independence of the federal judiciary.

Memorial Essays

The Personal Is the Pedagogical: A Very Brief Life of Professor Stoddard

Robert Murphy

Tom Stoddard–though more famous as a civil libertarian and gay rights advocate–was first and last a teacher. His brother John Stoddard remembers Tom, as a small child in the early 1950s, making John “learn all the capitals of all the states and of every country in the world. He knew them, and he wanted me to know them, too.” And only days before Professor Stoddard, at 48, succumbed to HIV disease, he submitted grades for his “Legislation” course. Despite the sudden physical decline that forced him to cancel class sessions before the end of the semester, he marked papers and exams at the hospital and then from his sickbed at home.

Tom Stoddard: Civil Libertarian

Norman Dorsen

The Greeks had a saying, “The good die young.” Rarely has this been as true as with Tom Stoddard, who in the short years given to him made an indelible mark as a hero in the struggle for the rights of lesbians and gay men. He did it all–courtroom advocate, legislative counsel for the New York Civil Liberties Union, head of Lambda Legal Defense Fund, and a colleague who taught (at New York University) one of the first courses given in any American law school centering on legal issues surrounding homosexuality. Tom will be remembered for many things, but mainly for his success, as the New York Times recognized when he died, in “bring[ing] issues affecting gay men and lesbians into the mainstream of legal and political debate.”

Tom Stoddard, Public Health, and Civil Liberties: A Remembrance

Ronald Bayer

It has become something of a conventional wisdom over the past decade to assert that there is no necessary tension between the aims of civil liberties and public health. Like all such wisdoms, although often true, there are occasions when bitterly contested battles make it clear that the picture is far more complex than the world as defined by mantras. Too often lost in the debate over claims about the salutary or baleful impact of the civil libertarian perspective on public health is some understanding of how that outlook emerged, took hold, and then achieved some currency. It is a history that can teach us much. And it is there that Tom Stoddard played a central role, for he helped to shape a rights-sensitive conception of public health.

Notes

Delegated to the State: Immigration Federalism and Post-Conviction Sentencing Adjustments in Matter of Thomas & Thompson

David G. Blitzer

In Matter of Thomas & Thompson, former Attorney General William Barr argued that states have no role to play in immigration matters and thus, state adjustments to a criminal sentence post-conviction will not be given effect for adjudicating deportability based on criminal grounds under section 101(a)(48)(B) of the Immigration and Nationality Act without an underlying substantive or procedural flaw in the original criminal case. The former Attorney General incorrectly assumed that states cannot be involved in immigration decisionmaking. Not only is it constitutionally permissible for the federal government to delegate certain immigration powers to the states, but the immigration code does so in many places. Careful examination of the text and legislative history of section 101(a)(48)(B) reveals that whatever sentence the state deems operative counts for immigration purposes—even if state law considers the operative sentence a later adjustment—implying that Matter of Thomas & Thompson put forth an erroneous interpretation.

Privatizing the Provision of Water: The Human Right to Water in Investment-Treaty Arbitration

Ashley Otilia Nemeth

Despite its critical importance, the fulfillment of the human right to water is far from the reality for many today. One in three people do not have access to safe drinking water and more than half of the world’s population does not have access to safe sanitation. Achieving the international community’s commitment of universal access to safe water and sanitation by 2030 would cost states approximately$150 billion per year. Meeting those funding needs inevitably entails private, and often foreign, investment. When investments do not go as planned, foreign investors may turn to international arbitration for relief. While intended to protect investments, this legal regime has allowed investors to challenge regulatory measures that further human rights and to wield undue power over states. This Note analyzes investment-treaty disputes involving drinking water to understand how states have invoked, and tribunals have considered, the human right to water. The cases show an important evolution on the part of tribunals. Nevertheless, almost all of the tribunals fall short of integrating the human right to water in their analysis of substantive treaty claims. Interestingly, the cases also reveal that, despite invoking human rights defenses, states engage in actions that are difficult to justify as furthering the right to water. In turn, this Note argues that the “fair and equitable treatment” standard can and should include relevant human rights law as part of “investors’ legitimate expectations.” Such an integration creates opportunities for accountability on both sides of the ledger: Investors are expected to engage in human rights legal due diligence, and states are taken to task when they invoke human rights in a perfunctory fashion. The fair and equitable treatment standard presents an opportunity to expand fairness and equity in international arbitration not only for the disputing parties, but also for the people who stand to lose from their actions.

The Limits of Dual Sovereignty

Eleuthera Overton Sa

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Yet the dual sovereignty doctrine, a longstanding rule of judicial interpretation, reads the Double Jeopardy Clause as applying only to prosecutions by a single sovereign. Successive prosecutions by separate sovereigns, including the United States and foreign nations, do not implicate double jeopardy. The Double Jeopardy Clause protects the individual from government overreach, but the dual sovereignty doctrine flips the script: It protects the interests of the sovereign at the expense of the individual. After many decades of criticism, the Supreme Court reconsidered and then reaffirmed the doctrine in Gamble v. United States. The current blanket rule solves one problem—the fear that sovereign interests will be thwarted by other sovereigns—but creates another: an incentive for two sovereigns to join up to evade constitutional requirements. In the shadow of the dual sovereignty rule, lower courts have articulated an exception where one sovereign manipulates another or uses it as a “sham” or a “cover” for its own aims. Without further guidance from the Supreme Court, however, courts are reluctant to find the exception to apply.

This Note offers a new approach to inter-sovereign successive prosecutions that would reconcile these two doctrinal threads and provide greater protection to defendants at the mercy of multiple sovereigns: application of the strict scrutiny standard. Courts should embrace the complexity of inter-sovereign prosecutions, which can range from situations of obstruction, where successive prosecution may be necessary, to manipulation, where it should be prohibited. Genuine protection of the right against double jeopardy demands strict scrutiny.

A “Charter of Negative Liberties” No Longer: Equal Dignity and the Positive Right to Education

Arijeet Sensharma

In the Spring of 2020, a panel of the Sixth Circuit Court of Appeals in Gary B. v. Whitmer penned an opinion recognizing a fundamental right to basic minimum education. While this decision was subsequently vacated pending en banc review and then dismissed as moot following a settlement, it stands as a bellwether of the long-overdue march toward recognition of positive rights under the Constitution. A series of Burger Court opinions attempted to calcify the notion that the Constitution is a “charter of negative liberties,” most famously DeShaney v. Winnebago County Department of Social Services and its progeny. These opinions erected three key doctrinal barriers to recognition of positive rights: 1) that a cognizable due process claim must arise from direct, de jure state deprivation; 2) that separation of powers points towards legislatures, not courts, as the appropriate bodies for curing social and economic ills; and 3) that furnishing equality is not a proper aim of due process.

But substantive due process doctrine has transformed over the past few decades. Most notably in a series of cases protecting the rights of LGBTQ+ individuals—Lawrence v. Texas in 2003, United States v. Windsor in 2013, and Obergfell v. Hodges in 2015—the doctrines of due process and equal protection have fused so intimately as to have revealed a new doctrinal structure, which Laurence Tribe has termed “equal dignity.” The doctrine of equal dignity has profound implications for the recognition of positive rights. Its theoretical tenets undermine the doctrinal elements which have traditionally steered federal courts away from recognizing positive rights. This Note argues that the case of education—considered in light of the post-Obergefell substantive due process doctrine—dismantles each of the traditional pillars of negative-rights constitutionalism, paving the way for recognition of a positive right to a basic minimum education. More broadly, Gary B. demonstrates that courts are now doctrinally equipped to recognize positive rights within the framework of modern substantive due process, a development that has radical implications for Fourteenth Amendment jurisprudence and the project of constitutional equality.


Merging Photography’s Copyright

Amanda Fischer Adian

Photography has exploded into the most accessible mode of creative production of
our time: Over one trillion photographs will be taken this year. Yet despite the
medium’s dramatic expansion, catalyzed by advances in technology, the copyright-
ability of photography remains controlled by a Supreme Court precedent that is
over one hundred years old,
Burrow-Giles Lithographic Co. v. Sarony. The long-
standing interpretation of
Burrow-Giles in the lower courts has rendered nearly
every litigated photograph copyrightable, even though the factual foundation of
Burrow-Giles is remarkably inconsistent with how most photography is produced
today. With protracted, low-value, and often frivolous copyright litigation over
photographs increasingly clogging up federal courts’ dockets, it is high time to
reconsider photography’s copyright.

This Note argues that a revitalization of copyright’s merger doctrine—long ignored
or dismissed in the realm of photography’s copyright—could be the vehicle for this
reassessment. Theorizing photographs as mergeable does not render the medium
per se uncopyrightable, but captures the spirit of the Supreme Court’s now 150-
year-old instruction to permit photography’s copyright, while correcting for
changes in photographic technology to better uphold the Court’s simultaneous
mandate that “ordinary” photographs should not receive copyright protection.

Doubling Down: Inconsistent Prosecutions, Capital Punishment, and Double Jeopardy

Vedan Anthony-North

There is a practice among prosecutors whereby they pursue incompatible theories
of a case against two or more defendants for criminal behavior for which, factually,
only one defendant can be culpable. While it’s difficult to determine just how fre-
quently these arguments are made, at least twenty-nine people have been con-
demned to death in cases where the defense has alleged inconsistencies, and seven
of those twenty-nine people have been executed. Situations like these cut against our
moral and ethical understanding of fairness and of justice; these arguments operate
in a world detached from reality, where factually singular acts can have multiple
agents, prosecutors are not accountable to a consistent narrative, and factfinders are
asked to make ultimate determinations of death based on factual impossibilities.
But finding ways to challenge the practice has, frustratingly, fallen short in pro-
viding legal relief to the condemned.

This Note looks beyond the due process and Eighth Amendment arguments against
this practice that have not provided fertile ground for protecting criminal defen-
dants from this type of vindictive approach to sentencing. Instead, this Note makes
a normative argument that the history of the Fifth Amendment’s Double Jeopardy
Clause, along with civil law principles of collateral estoppel that have been incorpo-
rated into the criminal law through the Clause, and protections against vindictive
sentencing practices that undergird the Clause bars this practice. In other words,
this Note argues that double jeopardy preclusion principles bar prosecutors from
relitigating issues of ultimate culpability in successive cases. This solution draws on
the Supreme Court’s only consideration of this issue
—Bradshaw v. Stumpf—which
makes an analytical distinction between the consequences of this practice on convic-
tion and consequences on sentencing.

Nipping It in the Bud: Fixing the Principal-Agent Problem in Class Actions by Looking to Qui Tam Litigation

Nicholas Alejandro Bergara

The principal-agent problem in class actions, which occurs whenever the interests
of class counsel (the agent) conflict with those of the class (the principal), has
plagued the class action system for decades. When these conflicts of interest arise,
they often lead to plaintiff classes receiving lower monetary awards than they other-
wise deserve, above-market fees for attorneys, and underenforcement of claims
against wrongdoers. Throughout the years, both Congress and scholars alike have
tried to address this issue, but it persists. This Note invites Congress and scholars to
think differently about potential solutions to a problem that has been around for far
too long. It argues that looking to qui tam litigation, specifically, the False Claims
Act, provides a unique approach that could help significantly curtail the principal-
agent problem. By permitting the government to install itself as lead counsel in class
actions involving money damages—when it deems an action to be worthy—the
financial incentives between any given class and its respective class counsel are
realigned. While private attorneys seek the maximum amount of attorney’s fees,
even if it comes at the expense of the client, government lawyers do not have the
same motivation. Adding an amendment to Federal Rule of Civil Procedure 23
permitting qui tam litigation would allow the government to act as a gatekeeper for
class actions while leaving the option open for private attorneys to bring suit should
the government decide not to do so. By providing different channels of enforce-
ment, the amendment offers a promising opportunity to better deter private sector
misconduct, discourage frivolous suits, and improve the overall outcomes for plain-
tiff classes.

Getting “Arising out of” Right: Ford Motor Company and the Purpose of the “Arising out of” Prong in the Minimum Contacts Analysis

Jeremy Jacobson

In Ford Motor Co. v. Montana Eighth Judicial District Court, the Supreme Court
heard a challenge to specific personal jurisdiction brought under the “arising out of
or relating to” prong (also referred to as the “arising out of” prong) of the min-
imum contacts test for only the second time. In attempting to evade jurisdiction for
injuries caused by defective cars in Montana and Minnesota, Ford argued that
because the specific cars at issue were not originally sold in those fora, its pur-
poseful contacts with the state did not proximately cause the injury at issue, and
therefore the injuries did not “arise out of” those contacts. Ford’s argument is based
on a misreading of
Bristol-Myers Squibb Co. v. Superior Court, the only case in
which the Court analyzed that prong of the minimum contacts test. This Note seeks
to explore the development and purposes underlying the “arising out of” prong,
concluding that its purpose is to ensure a sufficient connection between the forum
and the underlying claim such that the state has a legitimate regulatory interest and
that litigation in the forum is convenient. After describing the development and
purpose of the “arising out of” prong and contrasting it with the purpose under-
lying the “purposeful availment” prong, this Note addresses the ways in which chal-
lenges to jurisdiction are brought when it is unclear if the claim arises in a
particular forum. This Note then takes on the Ford case and discusses how the
Supreme Court’s decision fits into the framework describing what work the “arising
out of” prong is doing in the jurisdictional analysis.

Farmland Deregulation and Third-Stage Land Reform in Taiwan

Jessica Li

After decades in which agricultural land could only be owned by farmers, Taiwan’s
2000 amendments to the Agricultural Development Act opened up the farmland
market to non-farmers. This decision, along with Taiwan’s accession to the World
Trade Organization and the increasing globalization of trade, has had effects on an
agricultural landscape that has traditionally consisted largely of smallholder
farmers. This Note explores the 2000 amendments within both the historical context
of first- and second-stage land reform in Taiwan and the current context of third-
stage land reform and trade liberalization. The effects are far-reaching—the most
expensive farmland in the world, escalating non-agricultural use, fields left idle.
This Note raises questions about the role of agriculture in developed societies and
discusses the nuanced nature of farmland market deregulation.

The Racial Injustice and Political Process Failure of Prosecutorial Malapportionment

Michael Milov-Cordoba

District attorneys are responsible for the vast majority of criminal prosecutions in the United States, and most of them are elected by the public from prosecutorial
districts. Yet these districts are massively malapportioned, giving rural, dispropor-
tionately white voters significantly more voting power over their district attorneys
than urban voters, who are more likely to be voters of color. At the same time, our
district attorney system is characterized by the sorts of political process failures that
both triggered the Supreme Court’s Apportionment Revolution—requiring that leg-
islative and executive districts comply with one-person, one-vote—and justify judi-
cial intervention in other voting rights contexts. This Note argues that extending
one-person, one-vote to prosecutorial districts would meaningfully address
prosecutorial political process failure and have a number of salutary effects on our
democracy: It would rebalance the distribution of voters’ influence over district
attorneys, producing salutary downstream effects on our criminal justice system; it
may increase challenger rates, leading to healthier levels of prosecutorial demo-
cratic competition; and it would further core democratic norms, including respect
for the equal dignity of voters.

Racial Exclusion in Private Markets: How the New Accredited Investor Standard Is Arbitrary and Capricious

Grier E. Barnes

Private markets have exploded. This growth has created lucrative opportunities for businesses raising capital and those who qualify to invest. For decades, Securities and Exchange Commission (SEC) rules have restricted most private investments to “accredited investors,” a designation that, for members of the general public, was based exclusively on affluence. While critics of this regime have emphasized its role in exacerbating inequality, scholarship has neglected the economic divide between white and Black Americans specifically. This Note fills that void.

In August 2020, the SEC issued the first update to the accredited investor standard since its genesis in the 1980s. Using available data, this Note argues that the accredited investor regime—historically and as amended—systematically excludes Black investors and Black-owned businesses from private markets, which both perpetuates racial inequality and depresses the value of those markets. This Note proposes a framework for an Administrative Procedure Act lawsuit charging that the Securities Act required the SEC to consider these distributional effects when modernizing the accredited investor standard. Finding that the SEC failed to satisfy this statutory requirement and omitted other relevant data, this Note concludes that the accredited investor update was arbitrary and capricious in violation of the Administrative Procedure Act. It then offers guidance on how the agency can remedy its error and avoid repeating it in the future.

Expedited Removal of Visa Holders: Challenging Adverse Immigration Inspection Actions

John B. Corgan

Line-level immigration officers have virtually unreviewable discretion to deny noncitizens the ability to enter the United States. This power extends not only to those who enter without inspection or arrive with counterfeit documents, but also to those who travel to the United States with the U.S. government’s express permission—i.e., visa holders. These noncitizens can unwittingly be caught up in the expedited removal process, which affords only minimal procedural safeguards and heavily circumscribes judicial review of officers’ actions. This Note argues that, despite these limitations, federal habeas courts should take advantage of their ability under the statute to inquire into whether an expedited removal order in fact was issued. In particular, courts should insist upon compliance with critical procedures required by the agency’s own regulations, without which an expedited removal order may be said not to exist at all. Informed by fundamental principles of administrative law, such an insistence on procedural compliance could help correct some of the worst abuses of the system notwithstanding the lack of constitutional due process protections for arriving noncitizens.

“The Air Was Blue with Perjury”: Police Lies and the Case For Abolition

Samuel Dunkle

Police officers lie. About nearly every aspect of their work and at every stage of the criminal legal process—in arrest paperwork, warrant affidavits, courtroom testimony, and disciplinary proceedings. The primary scholarly account of police perjury frames the problem as one that emerged largely after the Supreme Court decided Mapp v. Ohio, which made the Fourth Amendment exclusionary rule applicable in state criminal proceedings. But a gap exists in the literature, one this Note seeks to fill: Scholars have neglected to consider whether, and to what extent, police lied before Mapp. By reaching into the historical record, this Note uncovers a rich tradition of rank perjury dating back to the origins of modern policing.

Building on the insight that police have lied for as long as police have existed, this Note sketches an abolitionist framework for police perjury. A structural understanding better accounts for the fact that police lies legitimate police power and figure prominently in two other features of modern policing—racialization and violence. In offering a new framework to understand the perjury problem, this Note joins the growing chorus of scholars, organizers, and activists calling for defunding and dismantling the police.

Perfecting Participation: Arbitrariness and Accountability in Agency Enforcement

Jackson L. Frazier

Agencies often bring enforcement actions and propose and accept settlements that have significant repercussions for the public and those harmed by the alleged misconduct. However, few meaningful opportunities exist for the public, or for victims, to participate in the decisionmaking process, and no external constraints exist to ensure their interests are adequately considered. Focusing on the Federal Trade Commission and its settlement procedures, this Note asks whether more is needed to preserve administrative legitimacy. To do so, it situates rights of participation within the two dominant schools of thought about the administrative state: the arbitrariness model and the accountability model. It finds that these theories support more expansive, but distinct, participatory rights for the general public and for victims. Criminal law, and the victim participation movement within it, provides guidance for the path forward, and this Note concludes that Congress and agencies should act together to perfect participation rights in agency enforcement actions.

Increasing Board Diversity: A New Perspective Based in Shareholder Primacy and Stakeholder Approach Models of Corporate Governance

Abhilasha Gokulan

As the world reckons with the #MeToo movement and Black Lives Matter movement, within the corporate world people are starting to take stock of board diversity. Pressure is starting to build from shareholders and stakeholders for their companies to hire diverse directors. Although diversifying boardrooms has garnered support as of late, many other members of the corporate world believe a company should not diversify simply due to external pressures and it being “the right thing to do.” This Note seeks to provide a new perspective for why hiring diverse directors is essential—one that is likely digestible to the more traditional, long-established members of the corporate world and our law-making bodies: Increasing board diversity furthers a corporation’s purpose. Placing the arguments for board diversity within the context of both the shareholder primacy and stakeholder approach models of corporate governance, this Note demonstrates that irrespective of which side of the corporate purpose debate one believes, diverse boardrooms are beneficial for a corporation and in fact necessary for its survival. It also advocates for short-term and long-term policies that can increase board diversity and encourage the benefits of diverse directorship to be fully realized.

High-Risk, High-Reward: A Case for Tax Deferral

Scott Greenberg

The federal tax code contains a number of provisions that reduce taxes on personal and business investment income. Many of these provisions fall into two categories: yield exemption provisions, which reduce taxes on investment returns, and tax deferral provisions, which reduce taxes on investment principal. While these two families of tax provisions are sometimes said to be equivalent, there are important differences between them. This Note focuses on one under-appreciated difference between yield exemption and tax deferral: the amount of risk to which the federal government is exposed. Under a tax deferral approach, the federal government’s expected revenue is higher but more uncertain, as revenue collections depend on the performance of taxpayers’ investments. This Note argues that policies that raise revenue by exposing the federal government to greater risk could be more efficient than other avenues of raising federal revenue. The federal government is able to take on market risk at a relatively low social cost, because of its high liquidity and ability to diversify risk across generations. While there are many possible ways for the government to raise revenue by taking on more risk, this Note argues that the tax code is a promising vehicle for doing so. All in all, this analysis adds a reason why tax deferral provisions are preferable to yield exemption provisions.

Hippies in the Boardroom: A Historical Critique of Addressing Stakeholder Interests Through Private Ordering

Ashley E. Jaramillo

Modern capitalist theory has been the engine of Western innovation and prosperity for centuries. However, the persistence of the free market and corporate form in the United States has come at a high cost. Industrialization powered by fossil fuels has permanently degraded and destabilized the Earth’s climate, wealth continues to concentrate among a handful of individuals, and increasing nativist and anti-immigrant sentiments threaten our institutions. This has led scholars to draw parallels between the current day and the Gilded Age, a period of massive wealth inequality during which the negative externalities of unfettered capitalism became particularly clear. This Note is situated in the rapidly expanding literature about environmental social governance (ESG) and stakeholderism, looking to past instances of corporate reform as well as the present realities of the modern-day corporation to argue that private ordering is an ineffective and improper means of addressing negative externalities of capitalism. It identifies moments of proto-stakeholderism during three periods: the Gilded Age, Progressive Era, and stock market crash of 1929, highlighting the cyclicality of addressing stakeholder concerns throughout history. It critiques two major avenues through which corporations might consider stakeholders—private ordering or government action—and argues that private ordering’s legal limits and legitimacy problems are inescapable when considering transformational ESG reform.

Taking the Court at Its Word: How Advocates Adapt When the Supreme Court Says No

Safeena L. Mecklai

Education in the United States is still segregated. But opponents of affirmative action now argue that affirmative action policies—which they maintain were never constitutional to begin with—are no longer needed to serve the goals of our education system. Yet while these policies in the education context continue to face challenges and public scrutiny, affirmative action policies in another area of law have consistently been upheld as constitutional. States, localities, and the federal government run robust minority- and women-owned business enterprise (M/WBE) programs, which set goals for minority- and women-owned business participation in government contracts. These programs are consistently upheld under Supreme Court doctrine in that area. This Note offers a reason for M/WBE success and a path forward for education: By taking the Court at its word and leveraging language about what “not to do,” advocates can design permissible programs to increase diversity.

Part I explores affirmative action in public contracting. Affirmative action policies have been actualized in government contracting through the use of disparity studies. These studies look at the disparity between available minority contractors and available work, using the blueprint laid out by Justice O’Connor in City of Richmond v. J.A. Croson Co., to set goals for minority participation in public contracting. Next, Part I reviews New York City’s and New York State’s M/WBE programs in-depth: their design, challenges to the programs, and their constitutional justification. Part II discusses how affirmative action in education differs from government contracting, and then looks to New York and Louisville school districts for examples of how advocates have started to navigate the Court’s language of what is impermissible to create plans that diversify permissibly. Part III explores the lessons for advocates seeking to achieve more diversity and better outcomes for minority communities. By focusing on what the Court wants in its opinions overturning advocates’ first tries at solving a problem, there is hope for more diversity using just the tools in the Court’s limited toolbox.

Wealth-Based Equal Process and Cash Bail

Liza Batkin

Though indigency is not a suspect class, the Supreme Court has repeatedly applied heightened scrutiny to laws that deprive low-income people of certain rights they can’t afford. It has done this through a makeshift doctrine that combines the principles of Equal Protection and Due Process. But the absence of a generalizable rule behind what this Note refers to as “wealth-based equal process” leaves the Court’s few constitutional protections for low-income people vulnerable to erosion by conservative Justices. This threat looms especially large as recent litigation draws on that doctrine to challenge the unfair treatment of indigent people in the criminal justice system. This Note attempts to shore up wealth-based equal process doctrine by proposing a general principle: Courts must apply heightened scrutiny when the government, by putting a price on a fundamental right that only the government can fulfill, entirely deprives an indigent person of that right. The Note then applies this principle to cash bail, revealing that the pretrial detention of indigent defend- ants lies at the heart of this doctrine and requires heightened scrutiny.

Simplistic Structure and History in Seila Law

Sasha W. Boutilier

In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court split 5–4 on appointing party lines in striking down for-cause removal protections for the Bureau’s single Director as violating the constitutional separation of powers. Chief Justice Roberts’s majority opinion expounded a novel principle: Significant executive power may not be concentrated in any single individual in the executive branch unless that individual is removable at-will by the President. This Note argues that the majority’s usage of structure and history to constitutionalize this principle was deeply flawed. It is unconstrained by any particular interpretive commitments. Further, it is internally inconsistent, logically flawed, historically opportunistic, and unsupported by a pragmatic consideration of the issue. And the Court’s subsequent decision, Collins v. Yellen—extending Seila Law to invalidate removal protection for the Director of the Federal Housing Finance Agency—has only exacerbated Seila Law’s flaws. I conclude with reflection on agency independence post-Seila Law and a call for pragmatic deference to the political branches.

Fact-Checking FISA Applications

Claire Groden

The Foreign Intelligence Surveillance Act (FISA) authorizes the Federal Bureau of Investigation (FBI) to subject Americans to uniquely invasive electronic monitoring, so long as the Foreign Intelligence Surveillance Court (FISC) approves the surveillance application. But in 2020, the government announced that two of the FISA applications it submitted to surveil a former 2016 Trump campaign aide were based on false statements and omissions—revealing systemic deficiencies in the accuracy of FISA applications, which has long relied on the integrity of FBI and Justice Department procedures alone. In the ordinary criminal context, defendants would have the ability to challenge the truth of the application predicating their Fourth Amendment search under Franks v. Delaware, but when defendants are prosecuted with evidence derived from FISA-authorized surveillance, courts have uniformly interpreted the statute to abrogate defendants’ rights to a Franks hearing. This Note argues that courts should use the procedures authorized by the Classified Information Procedures Act (CIPA) to facilitate Franks hearings for these defendants in order to reveal the incidence of falsely premised FISA surveillance. While Franks hearings in this context would be unlikely to vindicate the individual interests of FISA-surveilled defendants, they would offer a systemic deterrent effect, alerting the FISC to flawed applications and providing the Court an opportunity to discipline the FBI agents responsible.

Lessons from the Military on Reforming Police Discipline

Julia E. Paranyuk

In recent years, there has been significant public debate concerning policing in the United States. Current events and recurring instances of police brutality have drawn attention to police misconduct and reinvigorated calls for systemic reforms to policing and police discipline. While there is a growing consensus in the United States among citizens, politicians, and even officers, that policing—and, in particular, police discipline procedure—requires reform, there is far less agreement as to what changes are necessary and feasible. In the U.S. military context, Congress enacted the Uniform Code of Military Justice (UCMJ), which created a separate military law system that imposes punishment for various administrative and criminal offenses. Some police reform advocates have proposed enacting a UCMJ equivalent—a Uniform Code of Police Justice (UCPJ)—for the nation’s police forces. This Note argues in favor of adopting a UCPJ and proposes a recommended Code structure, while acknowledging that a UCPJ would not be a cure-all for our nation’s policing troubles; further systemic reforms would still be required.

Prudence Lost? Separation of Powers and Standing After Lexmark

J. Colin Bradley

In its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court began the process of “bringing discipline” to the various elements of prudential standing and suggested that the doctrine as a whole is inconsistent with the Court’s place in the federal separation of powers. Last year, the litany of opinions delivered by a divided Court in June Medical Services L.L.C. v. Russo manifested ongoing confusion about the fate of prohibitions on third-party standing and generalized grievances—two of the traditional prongs of prudential standing. This Note documents the heterogeneous approaches to prudential standing taken in the lower federal courts since Lexmark, and argues that this confusion is partly attributable to the Court’s misleading analysis of the role of judge-made gatekeeping doctrines in our federal system. Judge-made gatekeeping rules are ubiquitous in the federal judiciary, and courts have adopted a wide-range of approaches in the wake of Lexmark’s failure to identify a principle that could cabin its disfavor to only prudential standing rules. This Note argues that courts should instead acknowledge that judge-made gatekeeping rules like prudential standing’s third-party standing rule do a better job than alternatives in upholding the separation of powers values that are at the heart of the Supreme Court’s jurisdictional jurisprudence.

Failure to Function and Trademark Law’s Outermost Bound

Lucas Daniel Cuatrecasas

Federal trademark registration helps protect the hundreds of billions of dollars of brand value that trademarks can represent. Recently, interest in the failure-to-function doctrine, which prevents registration of proposed trademarks that consumers do not perceive as marks, has surged at the appellate body of the United States Patent and Trademark Office (USPTO), the Trademark Trial and Appeal Board (TTAB). This Note is the first in-depth, focused critique of the TTAB’s recent failure-to-function jurisprudence. It argues that, as the TTAB currently uses it, the failure-to-function doctrine is incoherent and lacks clarity. On a more granular level, the doctrine rests on inconsistent multifactor tests whose factors the TTAB adds, subtracts, modifies, reconceptualizes, and weighs differently across cases, giving the USPTO little meaningful criteria by which to decide what marks merit registration. This inconsistency risks increasing costs for the USPTO, brands, and consumers by creating uncertainty as to what proposed trademarks the USPTO will approve. In response, this Note proposes combining failure to function with a different trademark doctrine: the doctrine of aesthetic functionality. Replacing failure to function’s unwieldy multifactor inquiries with aesthetic functionality’s narrow focus on competition promises to increase clarity and, in so doing, mitigate or avoid costs to the USPTO, brands, and consumers.

The False Promise of MDL Bellwether Reform: How Mandatory Bellwether Trial Consent Would Further Mire Multidistrict Litigation

Jonathan Steinberg

Over one third of all pending cases in the federal court system are part of a Multidistrict Litigation (MDL) proceeding. Previous and ongoing MDLs include claims stemming from the opioid epidemic, the Deepwater Horizon oil spill, the National Football League concussion cases, and a myriad of pharmaceutical and medical products liability suits. Both the percentage and sheer number of cases utilizing this form of aggregate litigation have dramatically increased in recent years. Bellwether trials, designed to test the facts and legal theories underpinning many of the consolidated cases, are a key feature of MDLs in facilitating resolution. This Note examines the role of MDL bellwether trials and the potential impact of proposed reforms. Part I surveys the functions of bellwether trials as well as current judicial limitations imposed on the practice. Part II examines proposals that would further restrict the use of MDL bellwether trials: first, a bill from the 115th Congress and second, proposed amendments to the Federal Rules of Civil Procedure. These proposals would require the consent of all parties for an MDL bellwether to ensue. Finally, Part III explores the potential effects of these proposed reforms as well as the discrepancies between their purported aims and the likely impact of their enactment. These proposals would exacerbate the MDL “black hole,” result in less informed settlements, and create more opacity in the MDL process. Principally, they are an attempt to wrest power over procedure to cement defendants’ structural advantage over the MDL.

Relying on the Unreliable: Challenging USCIS’s Use of Police Reports and Arrest Records in Affirmative Immigration Proceedings

Erica D. Rosenbaum

Although many scholars have recognized the need for increased procedural protections for immigrants in removal proceedings, very little attention has been paid to the process afforded to immigrants applying affirmatively to acquire lawful status. However, due to the collection of important interests implicated by affirmative immigration proceedings, procedure still matters even if deportation is not immediately at stake. This Note helps to fill the scholarly gap by discussing a relatively recent phenomenon in affirmative immigration practice: U.S. Citizenship and Immigration Services’ requests for and reliance on police reports, arrest records, and other documents underlying any contact an applicant has had with the criminal justice system, even when the charges were ultimately dropped or the applicant was acquitted. This practice is particularly problematic in light of the unreliability of these documents, the role they play in the adjudication of applications, and the difficulty applicants face in appealing unfavorable decisions. Thus, this Note argues that not only is USCIS’s policy unlawful under the Administrative Procedure Act, but it also violates the guarantee of Due Process provided by the Fifth Amendment of the Constitution.

Fostering Discrimination: Religious Exemption Laws in Child Welfare and the LGBTQ Community

Adrianne M. Spoto

In response to increasing rights for LGBTQ individuals in the United States, particularly the Supreme Court’s affirmation of the right to same-sex marriage in Obergefell v. Hodges, eleven states have imposed laws or policies permitting child welfare organizations to deny services in accordance with their religious beliefs. These measures generally prohibit the state from “discriminating against” religious child welfare organizations by denying them funding or program participation when they refuse to provide services based on their religious beliefs. This Note provides an overview of these religious exemption laws and ultimately argues that, by requiring government funding of discriminatory child welfare organizations, the laws are unconstitutional under the Establishment Clause. The Note begins by considering relevant details about adoption and foster care systems in the United States. It then turns to the laws and policies in question, discussing their provisions, motivations, and impact. Then, taking two specific laws as examples, it analyzes these laws’ constitutionality, arguing for their invalidity under several approaches to understanding the Establishment Clause. By favoring certain religious viewpoints over others, permitting religion to dictate who receives government benefits and services, and imposing burdens on third parties (particularly LGBTQ prospective parents and youth), religious exemption laws ignore the line between church and state in violation of the Establishment Clause.

“Connote no Evil”: Judicial Treatment of the Secondary Boycott Before Taft-Hartley

Megan Stater Shaw

One of President Biden’s campaign promises, passing the Protecting the Right to Organize (PRO) Act, would remove the “secondary boycott” prohibition from the National Labor Relations Act, a provision which prevents unions from pressuring employers’ customers and associates in order to bargain with those employers effectively. This long-standing prohibition prevents unions and their workers from engaging in what is otherwise considered protected speech under the First Amendment, including picketing in public places. Some labor historians and commentators view the 1947 Taft-Hartley amendments, which codified the secondary boycott prohibition, as a reversal of liberal, New Deal policies. This Note shows, in fact, that both state and federal courts were deeply suspicious of the secondary boycott throughout the 1930s and 1940s. Even as state legislatures seemingly liberalized the law of labor protest in the early 1930s, state courts soon nullified these anti-injunction statutes through the application of common law tort principles. Likewise, the First Amendment right to picket declared by the Supreme Court in 1940’s Thornhill v. Alabama was quickly rolled back in the following terms when cases involving secondary picketing arrived at the Court. The history of the secondary boycott is not simply a cyclical one of repression, liberalization, and repression’s return. Labor advocates should approach reforms with a careful eye to prevent merely defederalizing the law of secondary boycotts by repealing the NLRA prohibition and leaving its regulation to the states, for even the most progressive jurisdictions in the New Deal era were hesitant to recognize secondary activity as a legitimate form of protest, and the Supreme Court’s First Amendment cases on labor protest leave little recourse for a legal challenge.

Beyond “Valid and Reliable”: The LSAT, ABA Standard 503, and the Future of Law School Admissions

Eremipagamo M. Amabebe

For nearly a century, the American Bar Association (ABA) has overseen the standards governing accredited law schools, which in turn constitute the primary pathway to the practice of law in the United States. ABA Standard 503 requires that all such schools use a “valid and reliable” examination to assess candidates for admission. Currently, the Law School Admission Test (LSAT) is the only examination that the ABA has officially recognized as satisfying the standard. However, the LSAT—now approaching its eightieth year—has strayed far from the purposes it was originally designed to serve. Once a simple tool to aid in the assessment of diverse applicants, it has in recent decades become a significant barrier to entry with disparate negative impacts on women, racial minorities, individuals of low socioeconomic status, and, perhaps most egregiously, those with disabilities. This Note argues that Standard 503 should be rescinded. Such a step is necessary both to stimulate innovation in law school admissions and to fulfill the ABA’s mandate of promoting diversity in the legal profession and serving the larger public good.

Federalism and Regulatory Takings

Nicholas G. Miller

In the area of regulatory takings, federal courts often confront issues of state law. This is because property is largely a regime of positive state law, while the Takings Clause is a federal constitutional guarantee. This Note deals with the standard of review to be applied by federal courts as to questions of state property law in the takings context. This Note explores two regulatory takings decisions by the Supreme Court—Lucas v. South Carolina Coastal Council and Stop the Beach Renourishment v. Florida Department of Environmental Protection—in which the Court conducted independent assessments of state property law. This Note argues that a more deferential standard of review, known as the fair support rule, is more appropriate for state-law issues arising in takings disputes. To arrive at this conclusion, this Note draws on principles of federalism and positivism expressed in Erie Railroad Co. v. Tompkins and by scholars in the legal process school.

Tortious Constructions: Holding Federal Law Enforcement Accountable by Applying the FTCA’s Law Enforcement Proviso over the Discretionary Function Exception

Eric Wang

Courts are reluctant to decide cases alleging abuses by federal law enforcement. This judicial reluctance is largely attributed to the principle of sovereign immunity, which holds that the United States—and therefore the federal government—cannot be sued. However, the sovereign can of its own accord consent to be sued: The federal government provided that consent in 1946 by enacting the Federal Tort Claims Act (FTCA), which allows tort suits against the United States. Specifically, a provision of the FTCA—the law enforcement proviso—explicitly states that law enforcement officers are amenable to suit for certain intentional torts. Nevertheless, courts have restricted the proviso’s efficacy through narrow interpretations and undue deference to competing FTCA provisions such as the discretionary function exception.

This Note argues that the law enforcement proviso must be interpreted more broadly to properly hold government officers accountable. It takes on the project of sifting through the FTCA’s complexity and history to articulate why the correct doctrinal approach is to apply the proviso exclusively, superseding any competing provision within the FTCA. It delineates the current spectrum of approaches among the circuit courts, finding that only the Eleventh Circuit has adopted the advocated approach. The Note then justifies this approach under statutory interpretation principles and tort law theory while also considering the practical consequences of a disappearing Bivens remedy. Properly understood, the complexity of the FTCA and the barrier of sovereign immunity fade away: For government activity as intrusive and forceful as law enforcement, a court of law simply must have the ability to hold officers accountable.

Mismanaged Care: Exploring the Costs and Benefits of Private vs. Public Healthcare in Correctional Facilities

Micaela Gelman

Administering healthcare in prisons and jails has been an exceptionally difficult task for state, county, and city governments for decades. Facing the unprecedented rise in the correctional population, governments began contracting with private correctional healthcare companies in the 1980s for cheaper, higher-quality care. However, in practice, private correctional healthcare companies have been disastrous for inmate-patients and their families. This Note examines the structural deficiencies in the privatization of correctional healthcare, and argues that the market factors required for successful privatization, including choice, competition, and responsiveness to consumer preferences, are absent in the correctional healthcare sector. In addition, the lack of meaningful oversight, protective contractual provisions, and legal hurdles facing prospective litigants compound these structural problems and leave the companies unaccountable for their misconduct. This Note proposes switching from these private companies to publicly-run options, such as government health agencies, partnerships with universities, and private non-profit organizations. These public models increase democratic accountability and transparency, lower costs, and more appropriately treat correctional health as the public health issue that it is. While administering healthcare services in correctional settings will always be challenging, switching to public models is the first step in improving care and treating inmate-patients with dignity.

Autonomous Weapons Systems Under International Law

Erica H. Ma

Autonomous weapons systems (AWS) have been described as the “third revolution of warfare,” after gunpowder and nuclear weapons. Currently in development, these weapons systems are powered by advanced algorithms that can make decisions to target and use lethal force against enemy soldiers on their own, without human intervention. Countries around the world are eager to be the first to develop and capture the advantages of AWS, while scholars and activists have sounded the alarm on the legal and ethical issues of delegating the decision to kill an enemy soldier to algorithms. Described as the dehumanization of war, the unique nature of AWS highlights an unresolved international law issue of whether and how international humanitarian law and human rights law can operate concurrently in armed conflict. Specifically, AWS raise the question of whether international humanitarian law, specialized law that governs the armed conflicts in which AWS would be deployed, would be the sole body of international law that regulates AWS, or whether human rights law would also govern the use of AWS in armed conflict. This Note argues that: 1) Human rights law applies to the use of AWS and prevails over international humanitarian law where the two bodies of law conflict, and 2) AWS’ use of lethal force violates human rights law’s prohibition against arbitrary deprivations of life.

Who is an American Soldier? Military Service and Membership in the Polity

Jin Niu

The military is one of the most powerful institutions to define membership in the American polity. Throughout this country’s history, noncitizens, immigrants, and outsiders have been called to serve in exchange for the privileges of citizenship and recognition. At its height, the idea that service constitutes citizenship—which this Note calls “constitutive service”—successfully transformed a group of “perpetual foreigners” to “citizens.” Until 1952, individuals of Asian descent were categorically excluded from the polity, a barrier that ultimately crumbled after Asian Americans rendered a long history of military service, beginning with the War of 1812, to the Civil War, then to the two World Wars. Yet, precisely because military service is so transformative, the United States over the past decade has imposed both formal and informal restrictions barring certain groups of people from serving, among them individuals who are gay, transgender, undocumented—and to a lesser extent—women and Muslim Americans. These restrictions are reminders that the United States continue to debate who is fit to be an “American,” and therefore, an “American soldier.”

Punishing Violent Crime

Russell Patterson

Beginning in the 1970s, politicians and the public began to view individuals who committed violent offenses as irredeemable dangers to the public whose incarceration was necessary to ensure the public’s safety. As a result, state legislators enacted sentencing statutes that increased the punishment of violent crimes, which include offenses such as murder, rape, and robbery. This Note explores what led lawmakers to adopt sentencing statutes that single out individuals convicted of committing violent offenses for enhanced punishment and then shows that those lawmakers operated on the basis of inaccurate or incomplete conceptions of violent crime. Drawing on recent sociological and other empirical work, it shows that there is no neat dividing line between people who commit violent and non-violent offenses and argues that lawmakers made their decisions on the basis of false or incomplete information. In response, this Note advocates for the elimination of sentencing statutes that impose enhanced sentences on individuals convicted of violent crimes. Lawmakers should instead determine the appropriate criminal punishment for those convicted of violent crimes through the holistic, evidence-based approach that has become popular in the last decade with respect to non-violent crimes.

Form, Substance, and Rule 23: The Applicability of the Federal Rules of Evidence to Class Certification

Madeleine M. Xu

Rule 23 of the Federal Rules of Civil Procedure governs the standards for certifying a class action, a type of litigation whose aggregate form is intended to make litigation accessible to large groups of injured plaintiffs and incentivize the vindication of claims that may otherwise go unpursued in the face of high litigation costs. However, while due process requires that a certifying court find that each element of Rule 23 is satisfied through “evidentiary proof,” the federal courts have failed to adopt any kind of consistent evidentiary standard to apply to the record proffered at class certification. This has resulted in the use of class certification as a bargaining chip between plaintiffs’ lawyers and wealthy defendants, rather than as a procedural mechanism that serves to test the propriety of a particular action for class treatment. Ultimately, this dynamic harms the very injured plaintiffs that this mechanism seeks to protect. This Note examines the need for a uniform evidentiary standard and surveys the countervailing interests of absent class members, defendants, class counsel, and the court at this critical juncture in a class action proceeding. It then proposes a novel categorization of the Federal Rules of Evidence as either form- or substance-based, and argues that an evidentiary standard that properly balances the interests of all parties involved in the class action requires a certifying court to apply substance-based evidence rules in determining whether a proposed class satisfies Rule 23. Such a rule, this Note will argue, is essential to ensuring that absent class members are protected, rather than exploited, by the class action mechanism.

Price Tags on Citizenship: The Constitutionality of the Form N-600 Fee

Juan Esteban Bedoya

Proof of citizenship is of paramount importance. In the United States, the need for citizenship documentation is particularly acute in light of heightened immigration enforcement. For U.S. citizens born abroad, proof of citizenship can be obtained by submitting a Form N-600 to United States Citizenship and Immigration Services, which in turn provides a Certificate of Citizenship. Although these individuals are entitled to citizenship and all of its benefits by statute, they are required to pay $1170 in order to obtain this Certificate. This Note seeks to analyze the constitutionality of this exorbitant fee. Determination of citizenship confers with it important rights and several privileges, such as access to employment, the ability to vote and seek public office, and many other government benefits. Perhaps more importantly, determination of citizenship also confers protection—protection from detention, from removal proceedings, and from deportation. This Note analyzes the viability of a constitutional challenge to the $1170 filing fee through a procedural due process claim, the importance of which is underscored by the life-altering consequences of citizenship as well as the benefits and protections it affords. Simply put, access to the benefits of citizenship should not turn on a citizen’s ability to pay a prohibitively expensive fee; the Constitution demands greater protections.

Permanently Excluded

Maia M. Cole

New York City Housing Authority (NYCHA) deprives hundreds of residents of their housing every year without affording them due process. Based on the allegedly undesirable behavior of one household member, NYCHA can begin a termination of tenancy action against an entire family. Using the threat of termination as leverage, NYCHA coerces the tenant of record into permanently excluding the “undesirable” occupant, barring them from living with or visiting their family. The excluded family member is given no notice of the termination action and no opportunity to contest their permanent exclusion.

This Note contends that authorized occupants in NYCHA housing have due process rights which mandate notice and the opportunity to be heard before they lose their home. NYCHA does not currently recognize such rights. But, as this Note will show, authorized occupants have a property interest in public housing. NYCHA’s practice of permanent exclusion deprives them of that interest. This Note suggests alternatives for NYCHA to consider instead of relying on permanent exclusion as a means of crime reduction. Ultimately, the goal of this Note is to push NYCHA to live up to its mission: to provide decent and affordable housing to low-income New Yorkers.

Antitrust Litigation of Strategic Patent Licensing

Ryan Fackler

Antitrust and patent law exist in permanent tension, with patentholders permitted to engage in conduct that would otherwise be plainly anticompetitive. Given the over five hundred billion dollars of annual R&D investment in the United States, and given the importance of R&D for corporations’ long-term economic profits, the broad deference given in antitrust law to patentee conduct is shocking. Continuing such deference misunderstands the purpose of antitrust law and undermines the purpose of patent law. This Note focuses on one area where this tension should be resolved in favor of increased antitrust enforcement: strategic patent licensing arrangements whereby a patentee transfers a share of its monopoly profits in order to control its competitor’s R&D. Such strategic arrangements can be used in 1) a duopoly where large competitors agree to divide an existing market; and 2) a platform technology where the patent holder encourages inventions that follow on, rather than compete with, an existing patent. This Note argues that anticompetitive strategic patent licensing is currently addressable under existing antitrust doctrine. By defining a market for research and development, regulators can successfully litigate against strategic licensing without needing to extend existing antitrust doctrine. Defining a market for research and development, moreover, connects the academic push for dynamic antitrust analysis into the existing static antitrust framework, allowing courts to gain experience with dynamic analysis in a more comfortable static setting. Lastly, while this Note is broadly theoretical, this is not by choice, but a byproduct of the broad-scale secrecy surrounding patent license agreements. Accordingly, this Note calls for the FTC to use existing statutory authority to begin investigating the real-world anticompetitive uses of strategic patent licensing.

The Case Against Criminalizing Homelessness: Functional Barriers to Shelters and Homeless Individuals’ Lack of Choice

Joy H. Kim

In 2018, the Ninth Circuit ruled in Martin v. City of Boise that the city’s ordinance criminalizing individuals for sleeping or camping outdoors in public space—an increasingly popular method for cities to regulate the homeless—is unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause. Martin was not the first case in which a court struck down an anti-homeless ordinance under the Eighth Amendment. However, it was the first to deem it unconstitutional for a city to punish a homeless person for sleeping outside when shelters are not “practically available,” even if they technically have available beds. The court in Martin said the shelters at issue were not practically available because they were religiously coercive. This Note argues, however, that courts reviewing criminalization measures should consider whether shelters are practically available to homeless individuals for reasons beyond religious coercion. Many functional barriers to shelter deprive homeless individuals of a meaningful choice, and the Eighth Amendment prevents governments from punishing individuals for matters beyond their control. Courts should make individualized inquiries when considering the constitutionality of criminalization measures to assess whether individuals experiencing homelessness truly have a meaningful “choice” in sleeping outside. However, the constitutional infirmities behind criminalization measures, the highly factual inquiries required of courts to determine their constitutionality, and their exacerbation of homelessness underscore the need for cities to stop criminalizing homelessness.

Combatting Copyright Overreach: Keeping 3D Representations of Cultural Heritage in the Public Domain

Linnea Dale Pittman

Three-dimensional (3D) scanning technology presents cultural organizations with new opportunities to share their collections with a wider audience online, and conserve and archive art objects and antiquities for safekeeping. However, this technology can also present legal challenges when institutions like museums assert ownership, in particular employing copyright notices, over digital copies of public domain art and antiquities in their collections. The public domain comprises the collection of shared works that are free from legal barriers imposed by copyright law. When institutions attach copyright notices to public domain works, the legal language, even if unenforceable in court, chills the public’s use of these scans for far-ranging educational, artistic, and commercial purposes. This Note examines the current uses of 3D technology by cultural institutions and analyzes the current doctrine guiding copyright of digital models. It then discusses some of the reasons why, despite the best reading of the caselaw, cultural institutions continue to assert ownership over and restrict access to 3D models of public domain art. This Note proposes an American analogue to Article 14 of the European Union’s Directive on Copyright in the Digital Single Market. The proposed amendment to the Copyright Act would provide needed clarity to cultural institutions and the public, affirming that public domain works cannot receive copyright protection when reproduced in a digital format. A clear statement rule would reduce the chilling effect by discouraging copyright notices and restrictive terms of use on digital copies of public domain art and antiquities, in turn encouraging more institutions to provide open access to their digital collections.

Overfiling and Under-Enforcement

Hannah R. Miles

Environmental regulation is accomplished through a system of cooperative federalism—the federal Environmental Protection Agency (EPA) sets nationwide standards for various pollutants, but the responsibility for granting permits, inspecting facilities, and punishing violations is generally delegated to state agencies. This power-sharing arrangement has frequently created tensions between the federal and state environmental agencies. Overfiling is one of the most contentious of these tensions; it occurs when the federal government files an enforcement action against a polluter for a violation of a federal environmental statute after the delegated state agency has reached a settlement with the same polluter for the same violation. While overfiling occurs very rarely, it is a critical component of the cooperative federalism arrangement, and in this Note, I propose that it should occur more frequently in order to ensure that state agencies are not using low enforcement to de facto create a more hospitable landscape for polluters and damage public health and the environment.

Taking Congruence and Proportionality Seriously

Jeremy W. Brinster

Advocates are hoping that employment discrimination based on sexual orientation and gender identity will soon be outlawed under Title VII. To this end, the Supreme Court is currently considering whether Title VII already prohibits those forms of discrimination, and legislators have advanced the Equality Act, a new bill that would explicitly protect lesbian, gay, bisexual, and transgender employees. These debates, however, typically overlook a critical question: Does Congress actually have the authority to hold state governments accountable for discriminating against LGBT workers? This Note argues that Congress does. While Congress exercises its power to enforce the Fourteenth Amendment under the constraints of the Court’s “congruence and proportionality” standard, none of the limitations set by the Court foreclose the Equality Act’s provisions imposing liability on state employers. If the Court takes congruence and proportionality seriously, those provisions should stand. This Note thus challenges the conventional wisdom that LGBT individuals are beyond Congress’s power to protect merely because the Court does not formally review anti-LGBT discrimination under heightened scrutiny. It seeks to account for the Court’s clear concern with state action rooted in animus, which indicates that classifications targeting LGBT individuals are subject to careful judicial review. Moreover, it recasts the Court’s precedents on congressional enforcement, emphasizing that the legislative record and statutory scope, rather than the applicable standard of review, determine the validity of the statute in question. Under these clarified standards, the Equality Act emerges as appropriate enforcement legislation. 

Litigation Risk as a Justification for Agency Action

Timothy G. Duncheon

To justify its rescission of the Deferred Action on Childhood Arrivals (DACA) program, the Department of Homeland Security (DHS) employed a novel rationale: risk of litigation. DHS argued that DACA was potentially unlawful and might be disruptively enjoined by a court and that the Agency could preemptively wind down the program in light of risk that it would be forced to do so in litigation. This Note argues that agencies can and should consider litigation risk in taking regulatory action—especially given the increasing frequency of nationwide injunctions. But it proposes that an agency invoking litigation risk must examine four elements: forgone benefits prior to a predicted disruptive injunction, probability of the injunction, costs of the injunction, and contrary litigation risk. Examination of these elements here suggests that litigation risk alone did not justify the DACA rescission and that regulatory changes will rarely be justified on this sole basis. Courts must carefully scrutinize litigation risk rationales, as excessive deference to this rationale may allow agencies to evade responsibility for their policy decisions by passing blame on to hypothetical future judicial action. 

FCA v. FDA: The Case Against the Presumption of Immateriality from Agency Inaction

Alexander Kristofcak

The False Claims Act is a powerful statutory vehicle for the federal government to deter fraud on its purse, a significant public policy concern. Under the Act, government contractors can be liable for violating material legal requirements of federal programs. In assessing materiality, the courts are asked to evaluate the natural tendency of a violation to influence payment. One question that has been raised in a series of cases in the health product domain is whether government’s payment, despite knowledge of a violation, necessarily means that the violation was immaterial for the purposes of FCA enforcement. The industry is asking the courts to adopt that defense—what this Note terms the “immateriality presumption from agency inaction”—at the pleading stage. To justify the presumption, the defendants argue that the nuanced judgments of the agency vested with the authority and the requisite expertise to regulate—here, the Food and Drug Administration—must prevail over both the private parties who bring actions under the statute’s qui tam provisions, as well as anyone else within the government. Using the Act’s evolution, structure, legislative history, and empirical data, this Note argues against the presumption. First, it shows that the Act’s design strikes a deliberate balance between encouraging private actors and their meaningful oversight by the government. As such, the presumption is not needed to combat unmeritorious private claims. Second, the Note argues that potential overlap between enforcement under the Act and agency oversight is valuable in several ways. The Note’s most significant contribution is in explaining why the immateriality presumption, by tethering fraud enforcement to judgments of the agencies, could be harmful to the agencies them- selves and public interest writ large. In doing that, the Note challenges the claim that the presumption honors the expertise and facilitates the discretion of agencies. 

Chevron and the Attorney General’s Certification Power

Jonathan P. Riedel

Congress has delegated power to the Attorney General to execute the nation’s immigration laws, adjudicate individual noncitizens’ cases, and fill interpretive gaps in the statute. The Attorney General has in turn delegated this authority, by regulation, to the Board of Immigration Appeals (BIA). Most BIA decisions are administratively final, and noncitizens appeal unfavorable decisions directly to federal courts of appeals. In a small but growing number of cases, however, the Attorney General will step in to decide a case himself de novo after the BIA has ruled. This power of intervention and decision, sometimes known as the “referral and review” power or “certification” power, has drawn some praise for being an efficient use of the broad power afforded to the executive branch in the immigration context, but more often has sustained criticism for potential abuse. In this Note, I analyze this certification power through the lens of Chevron. In particular, I argue that Chevron deference to the BIA is appropriate because it serves the values of the Chevron doctrine—expertise, procedural regularity, and public accountability— but that Chevron deference to the Attorney General’s certified opinions is inappropriate. Courts have a responsibility under Step Zero not to defer to an interpretation of law unless its issuance adheres sufficiently to fundamental tenets of administrative law. Certified opinions are insufficient on all counts: Deference to the Attorney General’s interpretations of law issued in this manner serves none of the values of the Chevron doctrine. 

What the Federal Reserve Board Tells Us About Agency Independence

Caroline W. Tan

In administrative law, the sine qua non of agency independence lies in the enabling statute. If the statute protects the agency’s head from removal except “for cause,” then the agency is considered insulated from presidential control and classified as independent. On the other hand, if the statute is silent on for-cause tenure protection, then the agency is classified as executive. This Note questions that central assumption by relying on the history of the Federal Reserve Board of Governors, arguably one of the most independent agencies in Washington. By tracing the Board’s history from a limited institution in 1913 to the powerful central bank of today, this Note demonstrates that in at least some cases, the driving factors behind operative independence have more to do with the practical realities of governance than the formalities of administrative law. Indeed, even though the Fed’s enabling statute is silent on the issue of for-cause tenure protection, the President has never fired the head of the agency. Even President Trump has declined to go so far. This Note addresses this paradox through a detailed look at the Board’s history and the major inflection points in its rise. Throughout, this Note also highlights the active role that the Board played in its own ascendency, demonstrating the dynamic life of administrative agencies and the powerful role they can play in shaping their own futures. 

Too Far and Not Far Enough: Understanding the Impact of FOSTA

Emily J. Born

In early 2018, President Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) into law. It was enacted mainly in response to failed civil suits against Backpage.com, a website accused of allowing, and even helping, users to post ads of sex trafficking victims. Plaintiffs, minors with ads for them posted on the website, were almost universally blocked by Section 230 of the Communications Decency Act (CDA), which granted Backpage immunity for what its users post. FOSTA removes that immunity, as well as amends and adds federal offenses. The law has faced much criticism for going too far, but no one has yet asked if it goes far enough. In other words, would Backpage now lose the suits that could not have been filed before FOSTA? To evaluate the law’s impact, this Note reconsiders the infamous Doe v. Backpage case in light of FOSTA. After analyzing the law through analogous statutes and case law, this Note concludes the law is at most ambiguous as to its legal effect. Thus, not only is the law creating negative side effects for speech online and creating danger for sex workers, it may not even be achieving its legal objective. This Note looks at the widespread reaction to FOSTA, the self-regulation of many websites in response, and explores reasons for that reaction, including the law’s expressive effect. 

Should a Parent Company Be Liable for the Misdeeds of Its Subsidiary? Agency Theories Under the Foreign Corrupt Practices Act

Marcela E. Schaefer

In an effort to increase accountability and compliance with the Foreign Corrupt Practices Act (FCPA), in recent years both the Securities and Exchange Commission (SEC) and Department of Justice (DOJ) have held parent companies liable for the anti-bribery violations of their subsidiaries. Scholars and practitioners have argued that the two government agencies are applying an aggressive enforcement policy based on an overly expansive understanding of agency principles. However, because most investigations settle with deferred or non-prosecution agreements, a paucity of FCPA case law prevents corporations, prosecutors, and even judges from clearly understanding what the correct standards are for determining when a parent company is liable for the actions of its subsidiaries—especially under a principal-agent theory of liability. This Note is the first to challenge the narrative that the DOJ and SEC are improperly enforcing the FCPA anti- bribery provisions. It delineates the ways in which a parent can be liable for the misconduct of its subsidiaries before analyzing liability predicated on a principal-agent relationship and the amount of control required to establish such a relationship. It then provides a novel formulation of the correct standard to use in assessing whether an agency relationship exists, based on the Third Restatement of Agency and corporate case law. This Note then assesses DOJ and SEC cases before concluding that while the agencies are correct in holding parent companies liable for the misconduct of their subsidiaries, they are applying agency theories inconsistently, exacerbating the existing confusion as to what the correct standards are for parent companies. 

The Past, Present, and Future of United States-China Mutual Legal Assistance

Loren M. Scolaro

The Mutual Legal Assistance Agreement (MLAA) between the United States and China, effective since the late 1990s, reflects the development of cooperative law enforcement between the two countries. Study of transnational law enforcement between the United States and China and use of the MLAA has been limited because of the few notable cases and a lack of transparency. This Note will attempt to fill some of the gaps in the academic literature. 

The MLAA, which is unique among mutual legal assistance mechanisms the United States has with other states, arose out of a rocky history of trying to meld two countries’ values and interests. In practice, both prosecution and defense attorneys have noted the MLAA’s limitations. Its provisions lack the accountability of other international agreements, and both the United States and China have taken steps towards unilateral investigation and prosecution of transnational crimes where American and Chinese interests diverge. While both countries have paid lip service to continuing the MLAA, there is no external enforcement, oversight, or incentive to increase cooperation. If the MLAA remains in its current form indefinitely, it is not likely to facilitate a stronger joint law enforcement relationship. Formalizing the MLAA as a treaty could demonstrate a deeper commitment to cooperation, but the current state of relations between the United States and China makes this step politically unfeasible. 

Rejoinder

The Proper Role for Collateral Attack in Class Actions: A Reply to Allen, Miller, and Morrison

Marcel Kahan, Linda Silberman

Although Professors Kahan and Silberman would applaud a narrowing of the collateral attack remedy created by Matsushita II, as suggested by Miller and by Morrison, they argue that the interpretations offered by those two commentators are inconsistent with what the decision actually says and with its doctrinal rationale. The Ninth Circuit’s reliance on Phillips Petroleum v. Shutts offers no support for a distinction between inadequate representation due to structural deficiencies and inadequacy for other reasons. Moreover, the limiting interpretations offered by Miller and by Morrison would still permit collateral attack in a broad array of cases. In this rejoinder, the authors also respond to particular criticisms from Morrison and Allen, and conclude by noting the unanimity among all of tie commentators that broad collateral attack on class actions is undesirable.

The Amazing Vanishing Second Amendment

Eugene Volokh

I’m deeply flattered that David Williams chose to reply to my Article. His response is thoughtful, gracious, and, most important, direct: It frankly sets forth its conclusion, which is that the Second Amendment is “outdated” and “meaningless.” A part of the Bill of Rights has mysteriously vanished. This is a remarkable proposition. After all, supposedly “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”‘

Responses

Deregulatory Takings and Breach of the Regulatory Contract: Some Precautions

Oliver E. Williamson

Gregory Sidak and Daniel Spulber raise a series of important and controversial issues in their article, Deregulatory Takings and Breach of the Regulatory Contract. As the title of their article suggests, they interpret recent and prospective efforts to deregulate telecommunications and electric power networks as “takings” and recommend that regulated firms should be compensated for “stranded costs.” They further argue that the “efficient component- pricing rule” (ECPR) is the appropriate rule for pricing access to the network by entrants. Throughout, they adopt a contractual approach to regulation in which (implicitly) the managers of both regulated firms and regulatory agendas are assumed to behave in a stewardship fashion.

There is much in this approach with which I agree, but I also have a series of reservations.

Deregulatory Takings and Breach of the Regulatory Contract: A Comment

Stephen F. Williams

Gregory Sidak and Daniel Spulber develop a comprehensive argument both justifying compensation of utilities for the adverse effects of various deregulatory developments and explaining how to do so. They read the Takings Clause as expressing a fundamental principle of political economy requiring compensation in order to prevent—or at least reduce the risks of—government action destructive of wealth. Compensation thus should be required in most instances where the action cannot be justified as preventing harm or where the “settlement costs” of providing compensation are not excessive. The last qualification rules out compensation, for example, for losses resulting from changes in monetary policy.

My central concern about the authors’ argument is the question of why the old utility may not be in a good position to compete with new entrants.

The Moral Rhetoric of Legislation

Chai R. Feldblum

In his Essay, Bleeding Heart: Reflections on Using the Law to Make Social Change, Tom Stoddard set out to answer a question that challenges many of us who work to advance our view of social justice: “When and how, if ever, can the law change society for the better? … Is the law an effective tool for social change? (Or should I have become a social worker instead of a lawyer?)” Stoddard’s answer is that law can be an effective tool for social change, but only when it achieves the goal of “culture-shifting” and not simply “rule-shifting.” In Stoddard’s view, law has the capacity to achieve a number of rule-shifting goals: it can create new rights and remedies for victims, it can alter the conduct of the government, and it can alter the conduct of citizens and private entities. But law also has the potential to result in “culture-shifting”–it can express a new moral ideal or standard and can change cultural attitudes and patterns. However, I believe there are certain unique challenges posed in achieving the goal of equality for gay people that are not fully explored in Stoddard’s analysis.

Ex Parte Young After Seminole Tribe

David P. Currie

My message is one of calm placidity: Not to worry; Ex parte Young is alive and well and living in the Supreme Court. By way of background let me say that I am that rara avis, a law professor who thinks Hans v. Louisiana was rightly decided. For the reasons given by Justice Bradley, I am quite convinced that the Federal Question Clause of Article III does not extend the judicial power to suits against nonconsenting states. That being so, it follows that the much lamented first half of the decision in Seminole Tribe v. Florida is also right, for a long series of decisions makes abundantly clear that Congress cannot give the federal courts jurisdiction over matters outside Article III.

The Inadequate Search for “Adequacy” in Class Actions: A Reply to Professors Kahan and Silberman

Alan B. Morrison

Although Matsushita II can be read in a way that might lead to some difficulties, Professor Morrison insists that its result is plainly correct and its basic message—that federal courts should look with considerable skepticism on state court class action settlements that release federal claims which state courts are forbidden to adjudicate—is a sound one, properly applied to the facts of that case. Matsushita II is a narrow case that would not and should not, lead to the broad-scale collateral attack predicted by Professors Kahan and Silberman. Given the practicalities of litigation (including the statute of limitations for securities cases and the substantial risks of sideline sitting), the opportunities for collateral attack are quite limited and the possibility of abuses very small. At the same time, Kahan and Silberman undervalue adequacy of representation, which is an essential element of due process that must exist to bind persons not parties to a lawsuit. Their proposed solution would prevent meaningful federal review and create practical problems without effectively addressing the problems of forum shopping and plaintiff shopping. The holding of Matsushita II, in contrast would encourage settlement of such actions in a single proceeding in a federal court that finally resolves the dispute.

Full Faith and Credit to Settlements in Overlapping Class Actions: A Reply to Professors Kahan and Silberman

Geoffrey Miller

Professor Miller argues that there is a compelling case for a narrow, reading of the Ninth Circuit’s remand decision in Epstein v. MCA, Inc. (Matsushita II), such that the holding is neither as far-reaching nor as nefarious as Professors Kahan and Silberman suggest. In light of the extraordinary facts under which the litigation arose (and the court’s own limiting construction), Matsushita II should not be interpreted as opening up all class actions to collateral attack in a subsequent forum. Rather, the holding requires that, in order for collateral attack to be permissible. Class counsel in the initial forum must have been disabled from litigating the basis of the claim in the second forum and other indicia that class counsel did not fairly and adequately represent class members must be present. With this narrow interpretation, and existing procedures for avoiding interjurisdictional conflict, Matsushita II can be defended as a reasonable balance of tile costs of collateral attack and the benefits of deterring questionable settlements.

Finality of Judgments in Class Actions: A Comment on Epstein v. MCA, Inc.

William T. Allen

In this Response, Professor Allen contends that in arguing that plaintiffs in state court proceedings are unable to fairly and effectively bargain for the release of exclusively federal claims, the court in Matsushita II reached a judgment that is inconsistent with established concepts of finality of judgments, with design of an effective class action mechanism, and with the policies and precedents of full faith and credit. Although the centrality of the federalism idea has waxed and waned, the Supreme Court has generally encouraged respect by the lower federal courts of the processes and judgments of state courts. The existing system of decentralized state and federal courts allowed for the development of the Delaware Court of Chancery as a de facto specialized court of fiduciary and business law, which has been a positive force in the economy. The Matsushita II court, by contrast, does not accord respect to state court determinations of adequacy under Rule 23 and thus potentially reinvents the problem of inefficiency and second-guessing that is solved by the rule of finality and recognition of judgments. Commentators favoring Matsushita II‘s disregard for state court judgments erroneously believe that state court judges possess less integrity than their federal counterparts. A litigant is entitled to only a conscientious judicial determination of the issues according to law in a proceeding that meets constitutional minimums—a task that state courts are ably equipped to handle and that federal courts should not lightly disturb.

The Unitary Second Amendment

David C. Williams

In The Commonplace Second Amendment, Professor Eugene Volokh argues that in interpreting the Second Amendment we should give primacy to the operative clause over the purpose clause: While the latter may refer to a “well-regulated militia,” the former baldly proclaims, “the right of the people [not the militia] to keep and bear arms shall not be infringed.”‘ As a result, we should read the provision to guarantee a right of all private individuals to arms. Despite my considerable admiration for Professor Volokh’s article, I wish to disagree on two points. First, even if we accord primacy to the operative clause, that clause itself implicitly refers to a semi-collective entity—the “Body of the People”—rather than to private individuals. Second, while I agree with Professor Volokh that we should not read the purpose clause to “trump” the operative language, we also should not read the operative language to depart from the purpose clause. Instead, the best interpretive strategy is to read the two clauses together to produce a single consistent meaning, with neither clause taking primacy. We should, in other words, read the amendment as a unitary provision.

Retrospective

Seventy-Fifth Anniversary Retrospective: Most Influential Articles

N.Y.U. Law Review Editorial Board

The Editors of the New York University Law Review look back at the first three-quarters of a century of the publication. In light of their commitment to publishing timely and influential scholarship, they have endeavored to highlight those articles that have had the greatest impact on academia, practitioners, the judiciary, and the world beyond. The selection process looked to how often an article has been cited and also considered factors such as its age and extralegal appeal.

Speeches

A New Vision for the Legal Profession

Harry T. Edwards

I fear that our law schools and law firms are moving in opposite directions. The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. The firms should be ensuring that associates and partners practice law in an ethical manner. But many law schools–especially the so-called “elite” ones–have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. Many law firms have also abandoned their place, by pursuing profit above all else. My view is that if law schools continue to stray from their principal mission of professional scholarship and training, the disjunction between legal education and the legal profession will grow and society will be the worse for it.

Introductory Remarks

Norman L. Greene

“Politicians on Judges: Fair Criticism or Intimidation” was a program produced by the Committee on Lectures and Continuing Education of the Association of the Bar of the City of New York and held on October 7, 1996, before a large gathering at the Association.

Some Thoughts on Judicial Independence

Mario M. Cuomo

Once every four years we are asked to look closely at our unique democracy and ask ourselves how well it’s working and whether we need to make some changes. Invariably, for those who take the time to reflect, it becomes a reminder of the genius of the original design: a separation of powers to give the ship of state balance, a political system–legislative and executive–to implement the will of the majority, and a judicial system to protect the minority from being deprived of rights so basic no majority should be powerful enough to deny them. Tonight we discuss how that design is being tested by recent events.

Administrative Law and the Legacy of Henry J. Friendly

The Honorable A. Raymond Randolph

Winston Churchill once told a friend, “I never say, ‘It gives me great pleasure,’ to speak to any audience because there are only a few activities from which I derive intense pleasure and speaking is not one of them.” I do not share Churchill’s sentiments today. I gladly confess-it does indeed give me great pleasure to speak to you about Judge Henry J. Friendly and administrative law. Judge Friendly remains my judicial hero. When Ed Huddleson suggested this topic, I could hardly resist. The subject he proposed is fitting. For I know personally that Judge Friendly was very much an admirer of Judge Leventhal’s work on the D.C. Circuit.

The Judicial Branch in State Government: Parables of Law, Politics, and Power

The Honorable Christine M. Durham

In this Brennan Lecture, Justice Christine Durham explores the influence of power and politics on the judicial process of state court judges. The federal separation-of-powers doctrine tends to be far more strict than any separation-of-powers concerns found in state constitutions. Thus, unlike the federal courts, which largely are insulated from the political process, state court judges are actively involved in legislative and executive functions. Justice Durham suggests that the political pressure stemming from frequent interbranch activity, as well as the majoritarian pressure stemming from the popular election of most state judges, may influence decisions, often with disturbing results. Justice Durham also considers the effects such pressure can have on the integrity of the decisionmaking process.

The Ballot and the Bench

The Honorable Shirley S. Abrahamson

In this Speech, Shirley S. Abrahamson, Chief Justice of the Wisconsin Supreme Court, discusses and examines the benefits and drawbacks of popular elections of state court judges. While acknowledging that elections have the potential to compromise the integrity of the judiciary, in part because both voters and campaign donors will come before the court, the Chief Justice concludes that state electoral systems can be important tools to educate voters about the practice of judging and the importance of judicial independence.

Uncommon Humanity: Reflections on Judging in a Post-Human Era

Jeffrey L. Amestoy

In this speech delivered for the annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Vermont Supreme Court Chief Justice Jeffrey Amestoy uses the recent landmark Vermont decision of Baker v. Baker—the “same-sex marriage” case—as an occasion for deeper reflection on what it means to be human. In this “post-human” era—an era in which genetic manipulation, artificial intelligence, and cloning alter the human entity itself courts face unprecedented legal issues. Judges, as well as the rest of us, increasingly are forced to consider what to protect from such biotechnological advances, and where to draw lines among humans, animals, and chimera. The Chief Justice cautions that judges should not do so without consideration of what makes us human. This will require judges not to define humanity, but to describe and recognize it with, as Justice William Brennan urged, an awareness of the range of human experience. By imagining humanity—not through reason alone, but in a way that the heart can recognize—judges will be a humanizing counterweight in the legal challenges that lie ahead.

The Constitutional Right to a Remedy

Thomas R. Phillips

Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the right to a remedy through open access to the courts may be the most important. The remedy clause, which appears in the constitutions of forty states, usually takes one of two basic forms, but courts have interpreted and applied the clause in a variety of different and often contradictory ways. In this address, Chief Justice Phillips traces the development of the remedy guarantee from its inception in Magna Carta and explication by Coke and Blackstone. Many framers of the original state constitutions in colonial America adopted this guarantee as their own, recognizing it as a constraint on both judicial and legislative power. The Chief Justice examines subsequent judicial interpretations of the remedy clause as a potential check on legislative action limiting tort recoveries, particularly in the employment, construction, and medical malpractice contexts. Although he offers several reasons for caution against too robust a reading of the clause, the Chief Justice ultimately posits an approach that aims to protect absolute rights through equal access to justice, while urging state appellate courts to develop a coherent doctrine of remedies jurisprudence that reflects the continuing importance of the right to a remedy.

“Wise Parents Do Not Hesitate to Learn from Their Children”: Interpreting State Constitutions in an Age of Global Jurisprudence

The Honorable Margaret H. Marshall

In this speech delivered for the annual William J. Brennan, Jr. Lecture on State Courts and Social Justice, Margaret H. Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, reflects upon the present need for comparative analysis in state and federal courts. The influence of the United States Constitution can now be seen globally in the widespread practice of guaranteeing individual rights by means of a written constitution enumerating individual rights, the interpretation of which is charged to an independent judiciary. But the influence runs in more than one direction. Chief Justice Marshall explores the global cross-pollination of constitutional jurisprudence. Noting that state constitutions often provide protection of individual freedoms beyond those guaranteed by the federal Constitution, as interpreted by the United States Supreme Court, Chief Justice Marshall suggests that state courts are optimally positioned to incorporate comparative analysis into their jurisprudence. She explores three particular substantive areas–personal autonomy, hate speech, and physical detention–as particularly appropriate for the exercise of comparative analysis involving the decisions of foreign and international constitutional courts.

Symposium Articles

Mass Institutionalization and Civil Death

Rabia Belt

Most scholars who study felon disenfranchisement trace its roots back to Reconstruction. Southern states drew up laws to disenfranchise people convicted of felonies as an ostensibly race-neutral way to diminish the political power of newly freed Black Americans. Viewed against this historical backdrop, the onset of mass incarceration in the current era expands the impact of a practice intended to be both racist and punitive from the start.

This account is true, but it is incomplete. Non-criminal mass institutionalization has also played—and continues to play—a role in systematic disenfranchisement. Marshaling a wealth of archival and historical evidence, from newspapers, legislative debates, congressional hearings, and court cases, I reveal that institutional disenfranchisement is not just about mass incarceration—a singular phenomenon sparked by the Civil War that happens solely within the carceral state and targeted only freed Black people. Institutional disenfranchisement began much earlier, included more spaces than the prison, and initially targeted white men. Indeed, the more familiar prison disenfranchisement had a shadowy twin within the welfare state. Civil death includes more ghosts than previously imagined.

The Political (Mis)Representation of Immigrants in the Census

Ming Hsu Chen

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the exclusion of immigrants from the political community because this exclusion compromises representational equality.

Purcell in Pandemic

Wilfred U. Codrington III

The 2020 election season placed remarkable pressure on the U.S. election system. As the COVID-19 pandemic ravaged a politically polarized nation, American voters challenged a range of election regulations, looking to the courts for relief from laws that made voting particularly onerous during extraordinary circumstances. An examination of election law jurisprudence over this period reveals, among other things, the judiciary’s repeated reliance on a single case: Purcell v. Gonzalez. While its holding is less than clear, the decision in Purcell, at its core, governs the appropriateness of judicial intervention in election disputes on the eve of a political contest. The Court could have elucidated Purcell’s true meaning during this unique election cycle but, instead, it seems to have made matters worse. This Article argues that the Supreme Court’s repeated invocation of Purcell during the 2020 election cycle introduced an empty vessel for unprincipled decisionmaking and inconsistent rulings that only served to aggrandize election-related concerns, ultimately harming the nation’s most vulnerable voters. Part I describes the facts in Purcell, and what one might contend is its central holding. Part II highlights the chief deficiencies of the case, revealing a fundamental incoherence in its reasoning that augments the potential for government actors—including courts—to exploit Purcell in the lead up to an election. Part III examines more closely the judiciary’s application of Purcell in the 2020 primaries and general election, revealing the dangers it poses to voting rights and the democratic process.

Elections, Political Parties, and Multiracial, Multiethnic Democracy: How the United States Gets It Wrong

Lee Drutman

How can self-governance work in a diverse society? Is it possible to have a successful multiracial, multiethnic democracy in which all groups are represented fairly? What kinds of electoral and governing institutions work best in a pluralistic society? In the United States today, these are not just theoretical concerns but fundamental inquiries at the core of an urgent question with an uncertain answer: How does American democracy survive?

This Article looks for an answer by placing the United States in a broader context of multiracial, multiethnic democracies around the world. The basic argument is straightforward: The majoritarian politics of single-winner electoral districts and the two-party system it produces is bad for both minority representation and, by extension, for democracy itself. A more inclusive and stable democracy requires a proportional system of voting and more than two parties. This Article thus proceeds in three parts. Part I takes a broader look at the theory of multiracial, multiethnic democracy, with a particular focus on the role of parties and elections in sustaining or undermining multiracial, multiethnic democracy. Part II looks more closely at minority representation in the United States through the lens of the American party and electoral system and its deep inadequacies in supporting multiracial, multiethnic democracy. Part III argues that proportional representation is the logical solution for the United States if it wants to have a chance at being a stable multiracial, multiethnic democracy.

The Penalty Clause and the Fourteenth Amendment’s Consistency on Universal Representation

Ethan Herenstein, Yurij Rudensky

Many judges and scholars have read Section 2 of the Fourteenth Amendment as evidence of the Constitution’s commitment to universal representation—the idea that representation should be afforded to everyone in the political community regardless of whether they happen to be eligible to vote. Typically, this analysis starts and stops with Section 2’s first clause, the Apportionment Clause, which provides that congressional seats are to be apportioned among the states on the basis of “the whole number of persons in each State.” Partly for this reason, the Supreme Court’s lead opinion in Evenwel v. Abbott rejected the argument that “One Person, One Vote” requires states to equalize the number of adult citizens when drawing legislative districts, affirming that states can draw districts with equal numbers of persons.

But skeptics of the universal representation theory of the Fourteenth Amendment, most notably Justice Alito, have complained that this analysis is flawed because it ignores Section 2’s less-known and never-enforced second clause: the Penalty Clause. Under the Penalty Clause, states that deny or abridge otherwise qualified citizens’ right to vote are penalized with a reduction of their congressional representation. Any theory of representation drawn from the Fourteenth Amendment, the skeptics argue, must grapple with all of Section 2.

This Article takes up that call and explains how the Penalty Clause is not only consistent with but also reinforces the Fourteenth Amendment’s broader commitment to universal representation. Contrary to common misconceptions about the Penalty Clause, the Clause is structured so that the state as a whole loses representation in Congress, but no individual within the state is denied representation. In other words, the Penalty Clause does not operate by subtracting those wrongfully disenfranchised from a state’s total population prior to congressional apportionment. Rather, it imposes a proportional reduction derived from the percent of the vote-eligible population denied the vote that is scaled to an offending state’s total population. The Penalty Clause thus does nothing to upend Section 2’s advancement of universal representation. If anything, the Penalty Clause actually reinforces Section 2’s commitment to that idea. By reducing a state’s representation proportionally, it contemplates the representational interests of nonvoters, a key feature of the universal representation theory.

Failed Elections and the Legislative Selection of Presidential Electors

Justin Levitt

Questions about the state legislative role in determining the identity of presidential electors and electoral slates, and the permissible extent of a departure from regular legislative order, have recently reached peak prominence. Much of the controversy, including several cases to reach the Supreme Court, has concerned the constitutional delegation of power over pre-election rules. But a substantial amount of attention has also focused on the ability of state legislatures to appoint electors in the period between Election Day and the electors’ vote.

An asserted legislative role in the post-election period has two ostensible sources: one constitutional and one statutory. The constitutional provision—the portion of Article II allowing states to appoint electors in the manner the legislature directs— has received substantial scholarly and judicial attention. In contrast, there has been no prominent exploration of the federal statute, 3 U.S.C. § 2, despite text similar to the constitutional provision. This piece is the first to explore that federal statute as an ostensible basis for a legislature’s appointment of electors beyond the normal legislative process, in the aftermath of an election that has “failed to make a choice.” After reviewing the constitutional controversy, the Essay canvasses the history of the statute and its context. And it discovers a previously unreported historical anomaly, which might well affect construction not only of the statutory text, but also the constitutional predicate, in the event of a disputed presidential election.

Parsing Partisanship and Punishment: An Approach to Partisan Gerrymandering and Race

Janai Nelson

The threat of extreme and punishing partisan gerrymandering has increased exponentially since 2019 when the Supreme Court held partisan gerrymandering claims nonjusticiable. Although the Court was unanimous in recognizing that partisan gerrymandering can undermine the fair functioning of the electoral process, neither Rucho’s majority nor its dissent acknowledged the unique harm partisan gerrymandering visits upon the operation of our multiracial, multiethnic democracy when coupled with the upsurge of conjoined racial and partisan polarization. The Court’s failure to establish a limiting principle for the degree to which partisanship can usurp the redistricting process means that there is no federal guidance to cabin partisan gerrymandering and no measure to take account of the race-driven effect of the group lockout that partisan gerrymandering often produces. Absent this critical instruction from the Supreme Court, lower courts, civil rights advocates, and affected voters must turn to racial gerrymandering jurisprudence to discern first principles to guide a judicial response to partisan gerrymandering’s particular relation to and compounded effect on account of race. Fortunately, there is a through line from Rucho to the Court’s racial gerrymandering jurisprudence that plausibly permits federal courts to address hybrid racial and partisan gerrymandering claims and parse pure partisanship from punishment—if they are willing.

Constructing the Right to Vote

Joshua S. Sellers, Justin Weinstein-Tull

The right to vote is foundational to our democracy, but it lacks a strong foundation. Voting rights litigants are constantly on their heels, forever responding to state-imposed impediments. In this regard, the right to vote is decidedly reactive: directed and defined by those seeking to limit the right, rather than by those who advocate for it. As a consequence, the right to vote is both deeply fragile and largely impersonal. It is fragile because voters must reckon with flimsy electoral bureaucracies that are susceptible to meltdown from both intentional efforts to limit the franchise and systemic strain. The right to vote is impersonal because, with few exceptions, it is shaped through litigation, rather than comprehensive consideration of voters’ circumstances and needs.

To address these weaknesses, this Article champions the idea that a robust right to vote must be constructed. Unlike most other rights, the right to vote relies on governments to build, fund, and administer elections systems. This obligation is not ancillary to the right to vote; it is foundational to it. Drawing from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees, we argue that a constructed right to vote incorporates three essential features: electoral adequacy (including the right to adequate funding of elections, the right to competent management, and the right to democratic structures), voting rights legislation tailored to individuals’ experiences, and voting rights doctrines that require states to build their elections systems in rights-promoting ways.

The New Vote Dilution

Nicholas O. Stephanopoulos

We may be witnessing the emergence of a new kind of vote dilution claim. In a barrage of lawsuits about the 2020 election, conservative plaintiffs argued that electoral policies that make it easier to vote are unconstitutionally dilutive. Their logic was that (1) these policies enable fraud through their lack of proper safeguards and (2) the resulting fraudulent votes dilute the ballots cast by law-abiding citizens. In this Article, I examine this novel theory of vote dilution through fraud facilitation. I track its progress in the courts, which have mostly treated it as a viable cause of action. Contra these treatments, I maintain that current doctrine doesn’t recognize the claim that electoral regulations are dilutive because they enable fraud. However, I tentatively continue, the law should acknowledge this form of vote dilution. Fraudulent votes can dilute valid ones—even though, at present, they rarely do so.

Under my proposed approach, vote dilution through fraud facilitation would be a cognizable but cabined theory. Standing would be limited to voters whose preferred candidates are targeted by ongoing or imminent fraud. Liability would arise only if a measure is both likely to generate widespread fraud and poorly tailored to achieve an important governmental interest. And relief would take the form of additional precautions against fraud, not the rescission of the challenged policy. In combination, these points would yield a mostly toothless cause of action under modern political conditions. Should there ever be a resurgence of fraud, though, the new vote dilution claim would stand ready to thwart it.

The Political Branding of Us and Them: The Branding of Asian Immigrants in the Democratic and Republican Party Platforms and Supreme Court Opinions 1876-1924

Ciara Torres-Spelliscy

In this piece, I examine the political branding of Asian immigrants by comparing the rhetoric used in the political platforms of the Democratic and Republican parties from 1876 to 1924 to the language deployed in U.S. Supreme Court opinions during the same time period. The negative verbiage repeated at national political conventions branded the Chinese as a threat to labor, immoral, unassimilable, diseased, and invaders. Interestingly, the Republican authors of their political platforms were multiracial, and yet they produced rhetoric as harshly anti-Asian as their Democratic counterparts, who included ex-Confederate soldiers and even KKK members. And disappointingly, the Supreme Court picked up this derogatory language found in both parties’ political platforms and continued to echo it in cases that diminished the rights of Chinese and other Asian immigrants. This history is then linked to the present day through the example of the negative impact of politicians’ calling the contemporary COVID-19 pandemic “Kung Flu.”

The Peter Parker Problem

W. David Ball

Sandra Mayson, in her article Dangerous Defendants, points out the ways in which pretrial detention on the basis of public safety risk violates the “parity principle”—a measure of decisionmaking fairness that evaluates whether individuals of like risk are treated alike. As Mayson convincingly argues, if public safety risk is what justifies detention of those who have been arrested, it should also justify preventative detention of similarly risky people who remain in the community at large. In other words, merely having a person in custody does not logically change the analysis of the risk they present or what should be done with them.

In this Article, I argue that psychological factors, not assessments of risk, can explain why the parity principle is violated. A person in custody and a person in the community may present the same level of public safety risk, but the human brain typically uses heuristics, not calculations, to make decisions. Our brains want to minimize losses and regret. Whenever something bad happens, our brains automatically generate counterfactuals—the “if only I had done X” hypotheticals that allow us to imagine (and believe in) a world where tragedy would have been avoided. Counterfactuals that eliminate harm are easy to generate when someone is in custody, but hard to generate when someone is at large, and our brains conflate ease of generation with real-world probability. Counterfactuals, then, may help explain why the pretrial, public safety default seems to be to keep someone locked up, “just in case”—and why this desire is resistant to information and argument.

This Article adds an important dimension to the ongoing debates about whether judicial discretion or actuarial tools should govern pretrial release decisions. Judicial discretion may be biased towards incapacitation by operating on the “gut level” of psychology—even if the harms of detention outweigh the benefits. Across the United States, jails contain thousands of prisoners who could be released safely, who could resume work and the rest of their lives, but who remain incarcerated because of the fear that one of them might commit a sensational crime. The insights of this Article may also apply more generally to a host of similar problems, including parole release, executive clemency, diversion programs, and the removal of children from potentially abusive parents, and suggest that policymakers and reformers be cognizant of the way in which current criminal justice thinking is short-sighted, overly reactive, and biased towards incapacitation. By applying theories of the counterfactual proposed by Neal Roese and other behavioral psychologists, the Article provides an explanation for why, even when regulations change, judicial decisions to release arrestees may remain low. It suggests that experimental research specifically targeting judicial counterfactual thinking should be conducted.

Restoring the Historical Rule of Lenity as a Canon

Shon Hopwood

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes. As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts. If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

Safe Sharing Sites

Lisa M. Austin, David Lie

In this Article we argue that data sharing is an activity that sits at the crossroads of privacy concerns and the broader challenges of data governance surrounding access and use. Using the Sidewalk Toronto “smart city” proposal as a starting point for discussion, we outline these concerns to include resistance to data monopolies, public control over data collected through the use of public infrastructure, public benefit from the generation of intellectual property, the desire to broadly share data for innovation in the public interest, social—rather than individual— surveillance and harms, and that data use be held to standards of fairness, justice, and accountability. Data sharing is sometimes the practice that generates these concerns and sometimes the practice that is involved in the solution to these concerns.

Our safe sharing site approach to data sharing focuses on resolving key risks associated with data sharing, including protecting the privacy and security of data subjects, but aims to do so in a manner that is independent of the various legal contexts of regulation and governance. Instead, we propose that safe sharing sites connect with these different contexts through a legal interface consisting of a registry that provides transparency in relation to key information that supports different forms of regulation. Safe sharing sites could also offer assurances and auditability regarding the data sharing, further supporting a range of regulatory interventions. It is therefore not an alternative to these interventions but an important tool that can enable effective regulation.

A central feature of a safe sharing site is that it offers an alternative to the strategy of de-identifying data and then releasing it, whether within an “open data” context or in a more controlled environment. In a safe sharing site, computations may be performed on the data in a secure and privacy-protective manner without releasing the raw data, and all data sharing is transparent and auditable. Transparency does not mean that all data sharing becomes a matter of “public” view, but rather that there is the ability to make these activities visible to organizations and regulators in appropriate circumstances while recognizing the potential confidentiality interests in data uses.

In this way, safe sharing sites facilitate data sharing in a manner that manages the complexities of sharing while reducing the risks and enabling a variety of forms of governance and regulation. As such, the safe sharing site offers a flexible and modular piece of legal-technical infrastructure for the new economy.

The False Promise of Health Data Ownership

Jorge L. Contreras

In recent years there have been increasing calls by patient advocates, health law scholars, and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy, and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This Article addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for exclusive control. Second, it argues that if IHI property were structured along the lines of traditional common law property, as suggested by some propertization advocates, prohibitive costs could be imposed on socially valuable research and public health activity and IHI itself could become mired in unanticipated administrative complexities. Third, it discusses potential limitations and exceptions on the scope, duration, and enforceability of IHI property, both borrowed from intellectual property law and created de novo for IHI.

Yet even with these limitations, inherent risks arise when a new form of property is created. When owners are given broad rights of control, subject only to enumerated exceptions that seek to mitigate the worst effects of that control, constitutional constraints on governmental takings make the subsequent refinement of those rights difficult if not impossible, especially when rights are distributed broadly across the entire population. Moreover, embedding a host of limitations and exceptions into a new property system simply to avoid the worst effects of propertization begs the question whether a property system is needed at all, particularly when existing contract, privacy, and anti-discrimination rules already exist to protect individual privacy and autonomy in this area. It may be that one of the principal results of propertizing IHI is enriching would-be data intermediaries with little net benefit to individuals or public health. This Article concludes by recommending that the propertization of IHI be rejected in favor of sensible governmental regulation of IHI research coupled with existing liability rules to compensate individuals for violations of their privacy and abusive conduct by data handlers.

Contracting for Personal Data

Kevin E. Davis, Florencia Marotta-Wurgler

Is contracting for the collection, use, and transfer of data like contracting for the sale of a horse or a car or licensing a piece of software? Many are concerned that conventional principles of contract law are inadequate when some consumers may not know or misperceive the full consequences of their transactions. Such concerns have led to proposals for reform that deviate significantly from general rules of contract law. However, the merits of these proposals rest in part on testable empirical claims. We explore some of these claims using a hand-collected data set of privacy policies that dictate the terms of the collection, use, transfer, and security of personal data. We explore the extent to which those terms differ across markets before and after the adoption of the General Data Protection Regulation (GDPR). We find that compliance with the GDPR varies across markets in intuitive ways, indicating that firms take advantage of the flexibility offered by a contractual approach even when they must also comply with mandatory rules. We also compare terms offered to more and less sophisticated subjects to see whether firms may exploit information barriers by offering less favorable terms to more vulnerable subjects.

Machines as the New Oompa-Loompas: Trade Secrecy, the Cloud, Machine Learning, and Automation

Jeanne C. Fromer

In previous work, I wrote about how trade secrecy drives the plot of Roald Dahl’s novel Charlie and the Chocolate Factory, explaining how the Oompa-Loompas are the ideal solution to Willy Wonka’s competitive problems. Since publishing that piece I have been struck by the proliferating Oompa-Loompas in contemporary life: computing machines filled with software and fed on data. These computers, software, and data might not look like Oompa-Loompas, but they function as Wonka’s tribe does: holding their secrets tightly and internally for the businesses for which these machines are deployed.

Computing machines were not always such effective secret-keeping Oompa Loompas. As this Article describes, at least three recent shifts in the computing industry—cloud computing, the increasing primacy of data and machine learning, and automation—have turned these machines into the new Oompa-Loompas. While new technologies enabled this shift, trade secret law has played an important role here as well. Like other intellectual property rights, trade secret law has a body of built-in limitations to ensure that the incentives offered by the law’s protection do not become so great that they harm follow-on innovation—new innovation that builds on existing innovation—and competition. This Article argues that, in light of the technological shifts in computing, the incentives that trade secret law currently provides to develop these contemporary Oompa-Loompas are excessive in relation to their worrisome effects on follow-on innovation and competition by others. These technological shifts allow businesses to circumvent trade secret law’s central limitations, thereby overfortifying trade secrecy protection. The Article then addresses how trade secret law might be changed—by removing or diminishing its protection—to restore balance for the good of both competition and innovation.

Data Standardization

Michal S. Gal, Daniel L. Rubinfeld

With data rapidly becoming the lifeblood of the global economy, the ability to improve its use significantly affects both social and private welfare. Data standardization is key to facilitating and improving the use of data when data portability and interoperability are needed. Absent data standardization, a “Tower of Babel” of different databases may be created, limiting synergetic knowledge production. Based on interviews with data scientists, this Article identifies three main technological obstacles to data portability and interoperability: metadata uncertainties, data transfer obstacles, and missing data. It then explains how data standardization can remove at least some of these obstacles and lead to smoother data flows and better machine learning. The Article then identifies and analyzes additional effects of data standardization. As shown, data standardization has the potential to support a competitive and distributed data collection ecosystem and lead to easier policing in cases where rights are infringed or unjustified harms are created by data-fed algorithms. At the same time, increasing the scale and scope of data analysis can create negative externalities in the form of better profiling, increased harms to privacy, and cybersecurity harms. Standardization also has implications for investment and innovation, especially if lock-in to an inefficient standard occurs. The Article then explores whether market-led standardization initiatives can be relied upon to increase welfare, and the role governmental-facilitated data standardization should play, if at all.

Global Data Privacy: The EU Way

Paul M. Schwartz

EU data protection law is playing an increasingly prominent role in today’s global technological environment. The cornerstone of EU law in this area, the General Data Protection Regulation (GDPR), is now widely regarded as a privacy law not just for the EU, but for the world. In the conventional wisdom, the EU has become the world’s privacy cop, acting in a unilateral fashion and exercising de facto influence over other nations through its market power. Yet, understanding the forces for convergence and divergence in data privacy law demands a more nuanced account of today’s regulatory environment.

In contrast to the established narrative about EU power, this Article develops a new account of the diffusion of EU data protection law. It does so through case studies of Japan and the United States that focus on how these countries have negotiated the terms for international data transfers from the EU. The resulting account reveals the EU to be both collaborative and innovative.

Three important lessons follow from the case studies. First, rather than exercising unilateral power, the EU has engaged in bilateral negotiations and accommodated varied paths for non-EU nations to meet the GDPR’s “adequacy” requirement for international data transfers. Second, while the adequacy requirement did provide significant leverage in these negotiations, it has been flexibly applied throughout its history. Third, the EU’s impressive regulatory capacity rests on a complex interplay of institutions beyond the European Commission. Not only are there a multiplicity of policy and lawmaking institutions within the EU, but the EU has also drawn on non-EU privacy innovations and involved institutions from non-EU countries in its privacy policymaking.

Finally, this Article identifies two overarching factors that have promoted the global diffusion of EU data protection law. The first such factor regards legal substance. Public discourse on consumer privacy has evolved dramatically, and important institutions and prominent individuals in many non-EU jurisdictions now acknowledge the appeal of EU-style data protection. Beyond substance, the EU has benefited from the accessibility of its omnibus legislative approach; other jurisdictions have been drawn to the EU’s highly transplantable legal model. In short, the world has weighed in, and the EU is being rewarded for its success in the marketplace of regulatory ideas.

A Debatable Role in the Process: Political Parties and the Candidate Debates in the Presidential Nominating Process

Bob Bauer

As the federal campaign finance laws have withered, leading to the rise of super PACs and other forms of largely unregulated spending, the parties have remained subject to stringent legal restrictions and must contend with other factors adverse to their competitive position in the electoral landscape. Certain of the limitations they have encountered affect their ability to fund, control, and manage core institutional functions. One such function is the conduct of presidential debates, now largely financed, planned, and operated by the news media organizations and nonprofit organizations. The candidates, especially front-running candidates and party nominees, also have some say in the conduct of debates. But the parties occupy the periphery of these major campaign events that bear directly on how they present themselves and showcase their candidates to the electorate. Empowering parties through modest legal reforms to play more of a role in the debate process would be one limited but potentially important step in bolstering their standing and capabilities.

Parties by Design: Pluralist Party Reform in a Polarized Era

Bruce E. Cain, Cody Gray

While the debate over the role of political parties is longstanding and not completely resolved amongst scholars, most reform groups are skeptical that stronger parties are the solution to contemporary problems in the American political system. Looking at the effects of past reforms and related court rulings, we maintain that many of them strengthened the hand of party activists, independently financed candidates, and donors in the nomination process at the expense of elected officials and national party officials. This has not only fueled partisan polarization due to pres- sures from party activists and donors, but it also removed any ability of the party to conduct what some have termed “peer review.” Instead of focusing on reversing past party reforms, however, we propose taking a different tack. We ask what changes might make the political parties more effective umbrella organizations that promote coalition building and better governance in this period of high polarization. Toward that end, we propose some changes that might incentivize American political parties to serve that function better. The parties themselves would have to adopt some of these reforms. Others might require that reform groups and the courts be willing to give political parties a more privileged role in campaign finance.

Populism and Institutional Design: Methods of Selecting Candidates for Chief Executive

Stephen Gardbaum, Richard H. Pildes

The institutional design through which democracies choose nominees who compete to become a nation’s chief executive is among the most consequential features in the design of democratic elections. Yet there is surprisingly little scholarship that explores this issue in detail. This Article provides both historical perspective on the evolution over time of the nomination process in the United States and comparative perspective on how other major democracies structure this process. The central organizing theme of this piece is the contrast between nomination processes that entail a central role for “peer review”—in which party leaders have a central voice in the selection of their parties’ nominees—and purely populist selection methods, in which ordinary voters completely control the selection of nominees and party figures have no special role. The first half of the Article is historical and focuses on the United States. In the 1970s, the United States shifted almost overnight from the methods that had been used for nearly 200 years to select party nominees, in which official representatives of the political parties played the major role in deciding the parties’ candidates for President, to a purely populist mode (primaries and caucuses) for selecting presidential nominees. The consequences of this dramatic transformation have manifested themselves in recent presidential nomination contests. In this Part, we seek to show both how radical the change was that was made in the 1970s and yet how accidental, contingent, and inadvertent this transformation was. The “framers” of these changes did not actually intend to create the system with which we ended up, in which the primaries and caucuses completely determine the parties’ nominees. The second half is comparative and explores how other major democracies structure the process of choosing party leaders and candidates for chief executive. This part shows that the U.S. system is an extreme outlier among major democracies: In no other democracy is the selection completely controlled by the mass of ordinary voters. Most other democracies use systems of pure peer review to select candidates for chief executive; or use systems that mix elements of peer review with popular participation; and in other ways continue to give official representatives of the parties much greater say than in the United States over the selection of the parties’ nominees for chief executive.

Returning Peer Review to the American Presidential Nomination Process

Elaine C. Kamarck

As Americans, we take for granted that those we entrust with significant authority have been judged by their peers to be competent at the task. Peer review is a concept commonly accepted in most professions. For instance, in medicine “peer review is defined as ‘the objective evaluation of the quality of a physician’s or a scientist’s performance by colleagues.’” That is why we license plumbers, electricians, manicurists, doctors, nurses, and lawyers. We do this in most aspects of life—except politics. In 2016, Americans nominated and then elected Donald Trump, the most unqualified (by virtue of traditional measures of experience and temperament) person ever elected to the Office of the President of the United States, in a system without peer review. This Article is an argument for the restoration of some modicum of peer review in the modern nominating system of both major political parties.

Fixing the Presidential Nominating System: Past and Present

John Frederick Martin

For many centuries, political communities have contrived nominating systems that seek to attain similar goals across different countries—protecting the community from overly ambitious and powerful leaders, and uniting rather than dividing communities at election time around leaders with broad-based appeal. They have done so by resort to procedures that recur almost invariably—procedures framed to avoid plurality victories in multicandidate contests and to insulate nominators’ decisions from outside influence, including the influence of fellow voters’ decisions. One is struck by how painstakingly our forebears worked out the problems of nominations over time, with recurring themes and methods, which (ironically in this age of information) find no echo today in our own presidential nominating system.

Was the Process to Blame? Why Hillary Clinton and Donald Trump Won Their Parties’ Presidential Nominations

William G. Mayer

Given the widespread dissatisfaction with both major-party nominees in 2016, it is natural to ask if the American presidential nomination process is to blame for producing two such candidates as Donald Trump and Hillary Clinton. But when the dynamics of these two nomination races are examined, there is little evidence that the outcomes would have been affected by any plausible changes in the process. Hillary Clinton did gain an advantage from the Democratic rule that awards automatic delegate status to elected and party officials, but she also won a clear majority of the votes cast by ordinary voters in presidential primaries and of the delegates selected through primaries and caucuses. And though there is evidence that the leadership of the Democratic National Committee favored her nomination and wanted to aid her candidacy, there is little that the committee actually did—or could do—to make such an outcome more likely. On the Republican side, Donald Trump did not win because the Republican process was, in effect, taken over by independents. Trump won a solid plurality of the votes cast by primary voters who identified as Republicans. A different set of delegate allocation rules and a large contingent of Republican superdelegates might have slowed Trump’s road to the nomination, but, given his dominance of the primaries, probably would not have changed the final result. The only rules changes that might have aided both Clinton’s and Trump’s opponents were if more states had used a caucus-convention system instead of a primary to select their national convention delegates. Both Bernie Sanders and Ted Cruz fared substantially better in caucuses than in primaries. But given ample evidence that caucuses have a significantly smaller and less representative turnout than primaries, it is unlikely that either party—or their rank-and-file members—would have endorsed a substantially greater use of caucuses.

Ad Hoc Procedure

Pamela K. Bookman, David L. Noll

“Ad hoc procedure” seems like an oxymoron. A traditional model of the civil justice system depicts courts deciding cases using impartial procedures that are defined in advance of specific disputes. This model reflects a process-based account of the rule of law in which the process through which laws are made helps to ensure that lawmakers act in the public interest. Judgments produced using procedures promulgated in advance of specific disputes are legitimate because they are the product of fair rules of play designed in a manner that is the opposite of ad hoc.

Actual litigation frequently reveals the inadequacy of procedures created according to this traditional model. To fix the procedural problems that arise in such cases, litigants, judges, lawyers, and legislatures can design procedure on the fly, changing the “rules of the road” as the case proceeds. Ad hoc procedure-making allows the civil justice system to function when ordinary procedure fails, but it challenges the rule-of-law values reflected in the traditional model of procedural design. Instead of being created by lawmakers who operate behind a veil of ignorance, ad hoc procedure is made by actors seeking specific outcomes in pending cases. The circumstances in which ad hoc procedure is created raise concerns about lawmakers’ motivations, the transaction costs of one-off procedural interventions, the wisdom and fairness of those interventions, and the separation of powers.

This Article introduces the phenomenon of ad hoc procedure and considers its place in a world where much procedure continues to be made through the traditional model. Focusing on ad hoc procedural statutes, the Article contends that such statutes’ legitimacy—or lack thereof—depends on different factors than ordinary civil procedure. Unable to claim legitimacy from the circumstances in which it is crafted, ad hoc procedural legislation must instead derive legitimacy from the need to address a procedural problem and the effort to produce substantively just outcomes.

The Participatory Class Action

Elizabeth J. Cabraser, Samuel Issacharoff

The class action has emerged as the settlement instrument of choice in mass harm cases such as the Volkswagen emissions scandal or the Deepwater Horizon aftermath. But the class action has also reemerged in the mass tort context, most notably in the NFL Concussion litigation. After seemingly collapsing following the Amchem and Ortiz Supreme Court decisions of the 1990s, the class action device is getting an important second life in courts today.

This Article argues that the new class action has a feature that should increase its doctrinal acceptability: forms of active class member participation. What we term the “participatory class action” emerges from two developments. The first is the technological transformation in the means of communication with class members, and among the class members themselves. The second is that the current class action almost invariably arises from the initial aggregation and centralization of large numbers of individual suits and putative class actions in the Multidistrict Litigation (MDL) process. As a result, classes are comprised not simply of lawyers and absent class members, but of hundreds or even thousands of individual claims, with individuals capable of monitoring the class and represented by independent counsel.

With over forty percent of the actively litigated civil cases in federal courts now in the MDL dockets, the transformation in mass resolution is well underway. In these new consolidations, the assumptions of older law about absent class member passivity break down. In the popular typology in academic examination of class actions, class action law should insist on the loyalty of agents and the importance of individual ability to exit as guarantors of systemic legitimacy. In the participatory class action, voice emerges as a critical element, with the capacity of the normally silent class members to assert their interests and their views. As with the need for class action law to move from first-class mail to Twitter, so too must the law embrace the implications of real participation by those represented in the assessment of representational propriety.

Class Actions and Executive Power

Zachary D. Clopton

Decisions about class certification and arbitration have depressed private enforcement class actions, reducing deterrence and enforcement of important substantive rights. Until now, the consequences of these procedural decisions for the separation of powers have not been well explored. An aggressive Supreme Court and an inactive Congress have increased the importance of federal administrative law—for example, administrative attempts to regulate arbitration. Moreover, a reduction in private enforcement compounds the importance of public enforcement. State and federal enforcers may piggyback on (successful or unsuccessful) private suits, and they may employ new tactics to maintain deterrence. While proponents of a robust regulatory state may take solace in these executive rejoinders, they are not without costs. Specifically, executive action may be less transparent, less durable, and more susceptible to political pressures than its alternatives.

Class Actions Part II: A Respite from the Decline

Robert H. Klonoff

In a 2013 article, I explained that the Supreme Court and federal circuits had cut back significantly on plaintiffs’ ability to bring class actions. As I explain in this article, that trend has subsided. First, the Supreme Court has denied certiorari in several high-profile cases. Second, the Court’s most recent class action rulings have been narrow and fact specific. Third, the federal circuits have generally rejected defendants’ broad interpretations of Supreme Court precedents and arguments for further restrictions on class certification. One explanation for this new trend is that defendants have been overly aggressive in their arguments, losing credibility and causing courts to push back. Another is that courts are retreating from the view that pressure on defendants to settle is itself a reason to curtail class actions. It remains to be seen, however, whether this trend is the new normal, or merely a respite from the decline of class actions.

Reorienting the Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation

Judith Resnik

The 1966 revision of Rule 23 has shaped our political and legal imagination. Building on the 1950 ruling of Mullane v. Central Hanover Bank and Trust Company, which approved the possibility of binding absentees nationwide through representative litigation, Rule 23 expanded the groups eligible for class treatment. Aggregation responded to felt social needs—for banks to pool trusts, school students to enforce school desegregation injunctions, and consumers to pursue monetary claims too small to bring individually.

Key to the legitimacy of doing so for Rule 23’s drafters was “the homogeneous character” of claims, permitting an identity of interests between the representative and absent members of the class. The 1966 Rule 23 put judges in charge twice: first, to determine the shape of the class and the adequacy of the representation and second, if a compromise was proposed, to assess again whether representative plaintiffs had proffered a fair and adequate resolution.

Rule 23 gave a limited role to absentees, many of whom were in mandatory classes from which no exit was possible. Added on late in the drafting was a mandate to provide notice at the outset that class actions were pending. That notice was required only for a subset of cases; individuals with monetary stakes were given formal opportunities to “opt-out”—even if, as a practical matter, individual lawsuits were not likely feasible.

While not producing a mass of opt-outs, notice requirements have pushed the processes of class actions into the public realm. Class actions gained a visibility not only because of the stakes and the judicial decisions on certification and settlement but also through mass mailings that brought the idea of class actions into the homes of millions of potential beneficiaries of lawsuits.

Aspirations and utility thus combined to reframe constitutional understandings of the “process due” by legitimating the authority of courts to deal in the aggregate without individuals affirmatively consenting to participate when cases began. But what fifty years of experience with class actions and related forms of aggregation— including multi-district litigation (MDL) and bankruptcy—have made plain is that an aggregate litigation’s life-span often continues after settlement or trial. New information can emerge about difficulties in effectuating relief, as can conflicts among claimants, whose “homogeneous character” may diminish after resolution. Thus, aggregate litigation in practice has come to have three phases—certification, resolution by settlement or trial, and implementation of remedies.

Critics of class actions, aiming to disable their use, rely on problems of implementation to argue against certification at the outset, and they invoke due process rights of both defendants and absent plaintiffs. A new law of due process is also emerging in the arena of personal jurisdiction—as the Supreme Court circumscribes the ability of courts to decide claims involving non-resident defendants. I bring that doctrine into discussions of class actions, first because the Supreme Court expanded the ability to aggregate litigants in 1950 through expanding jurisdiction and second because the Court’s decisions reflect unease with adjudicative authority not founded on relationships among the forum and those whose rights are decided. The concern about ensuring that defendants are “at home” parallels class action notice, as both seek forms of affiliation between litigants and the jurisdictions deciding their rights.

The Supreme Court has used its new personal jurisdiction law to circumscribe the scope of courts’ reach. Here I propose to borrow its concerns for the opposite purpose—to build affiliations so to expand the authority of courts during aggregation’s third phase. Aggregation’s pooling of resources has new importance today, as tens of thousands of civil litigants appear in state and federal courts without lawyers. Revising its practices is one way for democratic polities to help all classes of persons have access to court-based remedies.

In 1950 in Mullane, the Supreme Court approved what has been called “jurisdiction by necessity” to license state courts to determine the rights of all claimants when lawsuits had a nexus with the forum and notice was provided. In this century, the Court should likewise recognize the necessity of giving judges jurisdiction to oversee aggregation post-settlement so as to monitor implementation, respond to conflicts, and assess distributional equities. And, just as the 1966 Rule drafters turned to notice as a means of doing “something” to connect litigants with courts, notice can again be put to work during aggregation’s third phase to provide the “publicity” (to borrow from Jeremy Bentham) that makes connections possible and that forces the practices of courts, lawyers, and auxiliary personnel before the public.

Foreword

Lee Epstein, Barry Friedman, Geoffrey R. Stone

Testing the Constitution

We live in the age of empiricism, and in that age, constitutional law is a relative backwater. Although quantitative methods have transformed entire fields of scholarly inquiry, reshaping what we ask and what we know, those who write about the Constitution rarely resort to quantitative methodology to test their theories. That seems unfortunate, because empirical analysis can illuminate important questions of constitutional law. Or, at least, that is the question to be tested in this Symposium.

We brought together a terrific group of scholars with a unique assignment. We paired distinguished constitutional thinkers with equally accomplished empiricists. We asked the law scholars to identify a core question, assumption, or doctrine from constitutional law, and we asked the empiricist to take a cut at answering it, or at least at figuring out how one might try to answer it. We understood that their answers might be preliminary at best, that the questions might be resistant to easy answers. This is so, in part, because empiricism is as much a means of refining questions as it is a way of answering them.

The balance of this Foreword is, in a sense, an introduction to the idea that more serious empirical analysis can further both constitutional law scholarship and constitutional law decisionmaking. Hence our title: Testing the Constitution.

Litigating State Interests

Margaret H. Lemos, Kevin M. Quinn

Attorneys General as Amici

An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979–2013 Terms and linked it up with data on the partisanship of state attorneys general (AGs). Focusing only on merits-stage briefs, we looked at each AG’s partisan affiliation and the partisanship of the AGs who either joined, or explicitly opposed, her briefs. If partisanship drives amicus activity, then we should see a strong negative relationship between the partisanship of AGs opposing each other and a strong positive relationship between those who cosign briefs.

What we found was somewhat surprising. States agreed far more often than they disagreed, and—until recently—most multistate briefs represented bipartisan, not partisan, coalitions of AGs. Indeed, for the first twenty years of our study, the cosigners of these briefs were generally indistinguishable from a random sampling of AGs then in office. The picture changes after 2000, when the coalitions of cosigners become decidedly more partisan, particularly among Republican AGs. The partisanship picture is also different for the 6% of cases in which different states square off in opposing briefs. In those cases, AGs do tend to join together in partisan clusters. Here, too, the appearance of partisanship becomes stronger after the mid-1990s.

Testing the Marketplace of Ideas

Daniel E. Ho, Frederick Schauer

Oliver Wendell Holmes’s notion of the marketplace of ideas—that the best test of truth is the power of an idea to get itself accepted in the competition of the market— is a central idea in free speech thought. Yet extant social science evidence provides at best mixed support for the metaphor’s veracity, and thus for the view that the truth of a proposition has substantial explanatory force in determining which propositions will be accepted and which not. But even if establishing an open marketplace for ideas is unlikely to produce a net gain in human knowledge, it may have other consequences. We illustrate how to empirically study the consequences of establishing or restricting a communicative domain. Our focus is on time, place, and manner restrictions, and we examine two potential natural experiments involving speech buffer zones around polling places and health care facilities providing abortions. Using a regression discontinuity design with geocoded polling information for over 1.3 million voters in two high-density jurisdictions (Hudson County and Manhattan), we provide suggestive evidence that speech restrictions in Hudson County reduced turnout amongst voters in the buffer zone. By failing to cue voters of the election, speech restrictions may have unanticipated costs. And using difference-in-differences and synthetic control matching with state-level data from 1973 to 2011, we illustrate how one might study the impact of speech restrictions around health care facilities. Although the evidence is limited, Massachusetts’s restrictions were accompanied, if anything, by a decrease in the abortion rate. Buffer zones might channel speech toward more persuasive forms, belying the notion that the cure for bad speech is plainly more speech.

The Decision to Depart (or Not) from Constitutional Precedent

Lee Epstein, William M. Landes, Adam Liptak

An Empirical Study of the Roberts Court

Constitutional law casebooks, generations of constitutional lawyers, and the Justices themselves say that the Court is more likely to depart from precedent in constitutional cases than in other types. We test this assumption in cases decided by the Roberts Court and find, at odds with earlier studies, that the data provide inconclusive support for it. Other factors, especially criticism of precedent by lower courts and lawyers, are more consistent and stronger predictors of the Court’s decisions to depart from precedent. These findings have interesting implications for lawyering, teaching, and judging in the constitutional law context.

Measuring the Chilling Effect

Brandice Canes-Wrone, Michael C. Dorf

Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights.

We tested these assumptions with respect to abortion rights. By comparing abortion rates with state laws over a two-decade-plus period, we found a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions, i.e., abortions in the roughly one month before the period in which abortions are forbidden. That effect persists even after controlling for potentially confounding variables, such as the number of abortion providers and pro-life public opinion. Moreover, the effect is not limited to the year of enactment or associated with failed policy initiatives, suggesting that the impact is due to the law itself rather than associated publicity. These findings are consistent with, and strongly suggestive of, a chilling effect on abortion providers and/or women seeking abortions. This result undermines the implicit assumption that the chilling effect is unique to laws regulating speech and vindicates the general proposition that laws can chill the exercise of constitutional rights beyond their literal coverage.

Rhetoric and Reality

Rebecca L. Brown, Andrew D. Martin

Testing the Harm of Campaign Spending

In its landmark campaign finance decision Citizens United v. FEC, the Supreme Court found that favoritism or influence over elected officials gained by wealthy campaign contributors does not—in the absence of outright corruption—give rise to the sort of constitutional harm that would justify restrictions on campaign spending. The Court was also insistent that any perceptions of ingratiation would not undermine the electorate’s faith in democracy. This paper challenges the doc- trinal and empirical underpinnings of those assertions. We argue that a loss of faith by the electorate implicates a central constitutional value and is a sufficiently compelling interest to justify campaign finance regulation. We also demonstrate empirically that the Court should not have been so confident that the elecorate’s faith in democracy is unaffected either by the appearance of influence or access due to campaign spending or by independent expenditures.

Testing Shaw v. Reno: Do Majority-Minority Districts Cause Expressive Harms?

Stephen Ansolabehere, Nathaniel Persily

The Supreme Court’s decision in Shaw v. Reno established an “analytically distinct” constitutional claim of racial gerrymandering for majority-minority districts drawn predominantly on the basis of race. The case was and continues to be controversial, because the precise nature of the injury caused by such districts has been a persistent source of debate. Shaw districts did not minimize a group’s representation, but rather they communicated an “expressive harm” due to signals they sent to the electorate and representatives that the jurisdiction relied too much on race in the construction of a district. Such districts, the Court argued, communicated racial stereotypes that individuals belonging to the same racial group were politically interchangeable, despite their many social and economic differences. This paper tests the “Shaw hypothesis” with recent survey data. We find no patterns in racial attitudes based on the shape and racial composition of a congressional district. We do, however, find substantial and expected gaps among racial groups concerning attitudes toward the practice of majority-minority districting, Section 5 of the Voting Rights Act, and job approval of the respondent’s representative.

Set in Stone? Change and Innovation in Consumer Standard-Form Contracts

Florencia Marotta-Wurgler, Robert Taylor

Standard-form contracting is the engine of the mass-market economy, yet we know little about what drives it and what factors are associated with its evolution. Understanding change and innovation of the substance, length, and complexity of fine print in the consumer context can help regulators identify sources of potential intervention as well as help them evaluate the effectiveness of mandatory disclosure regimes, which are commonly used as consumer protection tools. This Article studies the rate, direction, and determinants of change in consumer standard-form contracting. We examine what changed between 2003 and 2010 in the terms of 264 mass-market consumer software license agreements. Thirty-nine percent of contracts materially changed at least one term, and some changed as many as fourteen terms. The average contract became more pro-seller as well as several hundred words longer. The increase in length is not due to the use of simpler language. Contract readability has been constant: The average contract is as readable as an article in a scientific journal. The variance of contract length has grown, as has the variance in overall pro-seller bias, resulting in reduced contract standardization over time. Firms that were younger, larger, or growing, as well as firms with inhouse counsel, were more likely to change existing terms and to introduce new terms to take advantage of technological and market developments. Contracts appear to respond to litigation outcomes: Terms that were increasingly enforced by courts were more frequently used in contracts, and vice-versa. The results indicate that software license agreements are relatively dynamic and shaped by multiple factors over time. We discuss potential consumer protection implications as a result of the increased length and complexity of contracts over time.

Innovation and the Organizational Contract: Lessons from Income Trusts

Edward M. Iacobucci

This Article investigates why North American businesses typically do not adopt the trust form, other than as a financing vehicle. It examines an episode in Canada in which the trust form became very popular amongst publicly traded businesses. Until 2006, there were significant tax advantages associated with adopting an “income trust” structure. Regardless of the tax motivations for the form, the income trust offered businesses greater flexibility in choosing their governance rules than that offered by the corporate form. Income trusts often took advantage of this flexibility, deviating from mandatory corporate law rules on a number of dimensions. This Article finds that there were positive market reactions to innovations in governance by income trusts. However, once the law changed to remove the tax advantages of income trusts, the form all but ceased to be adopted—despite relatively low costs of adoption. On balance, this Article suggests that innovative trust structures are not especially valuable from a pure governance perspective, though governance innovations may be valuable if combined with tax advantages.

Contract and Innovation: The Limited Role of Generalist Courts in the Evolution of Novel Contractual Forms

Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

In developing a contractual response to changes in the economic environment, parties choose the method by which their innovation will be adapted to the particulars of their context. These choices are driven centrally by the thickness of the relevant market—the number of actors who see themselves as facing similar circumstances— and the uncertainty related to that market. In turn, the parties’ choice of method will shape how generalist courts can best support the parties’ innovation and the novel regimes they envision. In this Article, we argue that contractual innovation does not come to courts incrementally, but instead reaches courts later in the innovation’s evolution and more fully developed than the standard picture contemplates. Highly stylized, the trajectory of innovation in contract we find is this: Private actors respond to exogenous shocks in their economic environments by changing existing structures or procedures to make them efficient under the new circumstances. The innovating parties stabilize their newly emergent practices through a variety of regimes—both bilateral and multilateral—with the goal of establishing the context through which the innovation is implemented. It is only at this point, and when a dispute is presented to them, that courts step in. If contract innovation does indeed reach generalist courts through the mediating institution of these contextualizing regimes, then our argument follows directly: Because a central goal of contract adjudication is to enforce the agreement in the context the parties intended, the courts’ willingness to defer to the context provided by the parties will put the law more directly in the service of innovation.

Tacit Agreement and Relationship-Specific Investment

Clayton P. Gillette

Default rules of contract law permit recovery of consequential damages for breach when the breaching party had “reason to know” of those damages at the time of contracting. It is a common observation that sophisticated parties systematically bargain out of these default rules, since the scope of consequential damages is highly uncertain and largely within the control of the non-breaching party. Nevertheless, some parties retain the default rules, and some contracts involving sophisticated actors contain an explicit provision allowing consequential damages, including lost profits, for breach. In effect, these parties satisfy the test that awards consequential damages only when there has been “tacit agreement” to their recovery. That test, which has been repudiated by commentators and most case law outside of New York, limits recovery of consequential damages more severely than the standard “reason to know” test. In this Article, I examine contracts that include explicit “lost profits” clauses and cases in which courts have determined whether parties either tacitly agreed to or had reason to know of prospective lost profits. I claim that the relevant contracts and cases reveal that consequential damage clauses are used to solve a contracting problem that might otherwise frustrate mutually beneficial exchange. Parties and courts have perceived that a commitment to pay lost profits can diminish the threat of opportunistic behavior that is inherent where one party must make a relationship-specific investment prior to performance by the counterparty. In transactions with those characteristics, the investing party risk holdup by its counterparty between the period when the initial investment is made and when the second party must act. I suggest that a commitment to pay lost profits in the event of breach constrains the threat of holdup, and that in these circumstances the value of the promise compensates for the efficiency loss otherwise inherent in assigning consequential damages to the party least able to avoid them. While a pledge of lost profits in the event of breach is not the exclusive response to this holdup problem, it is a plausible and perhaps superior means of avoiding it. I conclude that the combination of near-universal opt-out of the default rule for consequential damages and the explicit adoption of a broad consequential damages clause in investment cases indicates that the “tacit agreement” test may be more consistent with the preferences of commercial parties for a contract default rule than the “reason to know” test.

Contracts as Technology

Kevin E. Davis

If technology means “useful knowledge about how to produce things at low cost,” then contracts should qualify. Just as mechanical technologies are embodied in blueprints, technologies of contracting are embodied in contractual documents that serve as “blueprints for collaboration.” This Article analyzes innovations in contractual documents using the same kind of framework that is used to analyze other kinds of technological innovation. The analysis begins by laying out an informal model of the demand for and supply of innovative contractual documents. The discussion of demand emphasizes the impact of innovations upon not only each party’s incentives to collaborate efficiently, but also upon reading costs and litigation costs. The analysis of supply considers both the generation and dissemination of innovations and emphasizes the importance of cumulative innovation, learningby- doing, economies of scale and scope, and trustworthiness. Recent literature has raised concerns about the extent to which law firms produce contractual innovations. In fact, a wide range of actors other than law firms supply contractual documents, including end users of contracts, specialized providers of legal documents, legal database firms, trade associations, and academic institutions. This Article discusses the incentives and capabilites of each of these potential sources of innovation. It concludes by discussing potential interventions such as (1) enhancing intellectual property rights, (2) relaxing rules concerning the unauthorized practice of law, and (3) creating or expanding publicly sponsored clearinghouses for contracts.

Market Conditions and Contract Design: Variations in Debt Contracting

Albert Choi, George Triantis

Scholars have catalogued rigidities in contract design. Some have observed that boilerplate provisions are remarkably resistant to change, even in the face of shocks such as adverse judicial interpretations. Empirical studies of debt contracts and collateral, in contrast, suggest that covenant and collateral terms are customized to the characteristics of the borrower and evolve in response to changes in market conditions, such as expansion and contraction in credit supply. Building on the adverse selection and moral hazard theories of covenants and collateral, we demonstrate that an expansion (contraction) of credit will lead not only to a decrease (increase) in the interest rate but also a reduction (expansion) of covenants and collateral through lessening (worsening) adverse selection and moral hazard problems. We conclude with some empirical implications of this analysis.

The Dynamics of Contract Evolution

Stephen J. Choi, Mitu Gulati, Eric A. Posner

Contract scholarship has given little attention to the production process for contracts. The usual assumption is that the parties will construct the contract ex nihilo, choosing all the terms so that they will maximize the surplus from the contract. In fact, parties draft most contracts by slightly modifying the terms of contracts that they have used in the past, or that other parties have used in related transactions. A small literature on boilerplate recognizes this phenomenon, but little empirical work examines the process. This Article provides an empirical analysis by drawing on a dataset of sovereign bonds. We show that exogenous factors are key determinants in the evolution of these contracts. We find an evolutionary pattern that roughly separates into three stages: stage one when a particular standard form dominates in the absence of external shocks; stage two when there are external shocks and marginal players experimenting with deviations from the standard form; and stage three when a new standard emerges. We find that more marginal law firms are likely to be leaders in innovation at early stages of the innovation cycle but that dominant law firms are leaders at later stages.

Fifty Years Later

N.Y.U. Law Review Editorial Board

In April 1957, the English legal philosopher H.L.A. Hart, Professor of Jurisprudence at Oxford, delivered the annual Oliver Wendell Holmes Lecture at Harvard Law School. Hart’s topic was “Positivism and the Separation of Law and Morals,” and he intended his lecture, offered at a “law school deeply influenced by the [legal] realism of Holmes and the sociological jurisprudence of Roscoe Pound,” to be provocative as well as informative. The focus of Hart’s lecture was a core tenet of traditional legal positivism—that there is no necessary connection between law and morality. This was a proposition that would later be defended in detail in Hart’s masterwork, The Concept of Law, published in 1961. Hart’s lecture sought to explain, clarify, and elaborate the positivist account of the relation between law and morality, while at the same time defending legal positivism against the accusation that it was complicitly silent on the evil of oppressive legal regimes.

The Grudge Informer Case Revisited

David Dyzenhaus

This Article explores a decision by a German postwar court—the Case of the Grudge Informer—which was central to the 1958 debate between H.L.A. Hart and Lon L. Fuller. The author argues that Fuller’s presentation of the problem in the case is better than Hart’s both as a descriptive matter and as a matter of promoting a morally responsible resolution—not least because Hart’s method of candor falls short of illuminating the complexities inherent in such cases. In particular, Hart’s positivist conception of law does not appreciate how judges in such cases have to contend with a connection between the doctrinal level and the fundamental level. At the former, judges have to resolve issues of substantive law such as the issues of criminal law in the Grudge Informer Case. At the latter, judges confront the question of what Fuller called their “ideal of fidelity to law,” since they are faced with questions about what legality—the principles of the rule of law—requires. The confrontation between such ideals is not, as Hart suggested, one that takes place in an extralegal political space. Rather, it is firmly within the scope of both law and the philosophy of law.

Positivism and the Inseparability of Law and Morals

Leslie Green

H.L.A Hart made a famous claim that legal positivism somehow involves a “separation of law and morals.” This Article seeks to clarify and assess this claim, contending that Hart’s separability thesis should not be confused with the social thesis, the sources thesis, or a methodological thesis about jurisprudence. In contrast, Hart’s separability thesis denies the existence of any necessary conceptual connections between law and morality. That thesis, however, is false: There are many necessary connections between law and morality, some of them conceptually significant. Among them is an important negative connection: Law is, of its nature, morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible.” This Article argues that Hart’s most important message is that there is also an immorality that law makes possible. Law’s nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

Tributes

Professor Ronald Dworkin

Jeremy Waldron, Lewis A. Kornhauser, The Honorable Stephen Breyer, T.M. Scanlon, Rebecca L. Brown, Liam Murphy, Robert B. Silvers, Thomas Nagel

Last year, the NYU community lost an intellectual giant in Professor Ronald Dworkin. The school and the Law Review joined together to honor Professor Dworkin’s writings, ideas, and of course, his legendary colloquia. Academics, philosophers, and judges gathered to pay tribute. In the pages that follow, we proudly publish written versions of those tributes.1 The ceremony closed with a short video clip of one of Professor Dworkin’s last speeches, titled Einstein’s Worship. His words provide a fitting introduction:

“We emphasize—we should emphasize—our responsibility, a responsibility shared by theists and atheists alike, a responsibility that we have in virtue of our humanity to think about these issues, to reject the skeptical conclusion that it’s just a matter of what we think and therefore we don’t have to think. We need to test our convictions. Our convictions must be coherent. They must be authentic; we must come to feel them as our convictions. But when they survive that test of responsibility, they’ve also survived any philosophical challenge that can be made. In that case, you burnish your convictions, you test your convictions, and what you then believe, you better believe it. That’s what I have to say about the meaning of life. Tomorrow: the universe.”

For Kim, and Her World

Barry Friedman

On November 20, 2004, New York University lost a cherished member of its extended family, the legal academy lost a promising young scholar, and the world lost an exemplary citizen. This Symposium represents the effort of many who struggled with this mutual loss. It is to Kim, to her beloved family and many friends, to her shortchanged colleagues, and to the fellow citizens of Kim’s world, that this collection of essays is dedicated.

Tribute to Stewart G. Pollock

Judith S. Kaye, Reginald Stanton, Howard M. Erichson

Justice Stewart G. Pollock retired from the New Jersey Supreme Court on September 1, 1999, after twenty years of service. The editors of the New York University Law Review dedicate this issue to Justice Pollock in tribute to his distinguished career on the bench. Chief Judge Judith Kaye, Judge Reginald Stanton, and Professor Howard Erichson provide insights into Justice Pollock’s jurisprudence and character.

In Memory of Elizabeth Theresa McNamee

Joy L. DeVito, John W. McGuinness, Shabnam Noghrey, Sevan Ogulluk

The editors of the New York University Law Review respectfully dedicate this issue to the memory of Elizabeth Theresa McNamee. Elizabeth was a third-year student and an Associate Editor on the Law Review. The following is an Essay written by four of her closest friends in law school, Joy L DeVito, John W. McGuinness, Shabnam Noghrey, and Sevan Ogulluk. Their Essay commemorates Elizabeth’s life and describes what made her special.

Bernard Schwartz

John Sexton

Bernie was a prolific scholar; he is the author of dozens of books that have been translated into dozens of languages, works that can be seen on the bookshelves of the Supreme Courts of China, Japan, Germany, and Argentina to name just a few. Last year we celebrated his 50th year of teaching at NYU Law School. The legal community has lost an outstanding teacher, a consummate scholar, and a great friend. Bernie Schwartz will be missed by all.

The California Death Penalty Scheme: Requiem for Furman

Steven F. Shatz, Nina Rivkind

In 1972, in Furman v. Georgia, the United States Supreme Court struck down the death penalty schemes of Georgia and other states as unconstitutional because they created too great a risk of arbitrary death sentences. The decision was based in part on the Justices’ belief that relatively few (15-20%) of the number of death-eligible murderers were being sentenced to death and that there was no meaningful basis for distinguishing the cases in which the death penalty was imposed. In subsequent cases, the Court interpreted Furman to require that the states, by statute, genuinely narrow the death-eligible class. Professors Shatz and Rivkind argue that, in disregard of Furman, California has adopted a death penalty scheme which defines death-eligibility so broadly that it creates a greater risk of arbitrary death sentences than the pre-Furman death penalty schemes. They base their argument on an analysis of California statutory and decisional law and on a study of more than 400 appealed first degree murder cases. They conclude that unless the Supreme Court finds the California scheme unconstitutional, it has effectively abandoned Furman.