NewYorkUniversity
LawReview
Current Issue

Volume 93, Number 4

October 2018
Symposium Articles

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.

Notes

Termination Rights in the Music Industry: Revolutionary or Ripe for Reform?

Chase A. Brennick

When Congress passed the Copyright Act of 1976, it enacted Section 203, which allows authors to terminate transfers of the copyright in their works thirty-five years after the transfer. Congress intended this to be the author’s “second chance” after having made a disadvantageous first deal, either due to a lack of bargaining power or an inability to predict the work’s future value. Within the music industry, the impact of Section 203 has been contested, with some arguing that it will fundamentally shift the balance of power between recording artists and songwriters (the authors) and record labels and music publishers (the transferees), and others expecting that the provision will provoke contentious litigation of Section 203’s statutory exceptions. Because the first works reached termination eligibility in 2013, the effects of Section 203 remain unclear. In this Note, I argue that, even if an author circumvents the statutory exceptions, Section 203 is largely ineffective because several factors prevent a clean severance of the relationship between the author and transferee. Complications related to jointly authored works, the jurisdictional limitation to the United States, and contract provisions that survive post-termination create a situation where the author may regain his or her U.S. copyrights but will remain tethered to the transferee. Although an author could theoretically self- administer his or her U.S. copyrights or transfer these rights to a new transferee, the economically rational option is to retransfer the copyrights to the original transferee. This result precludes any significant impact on the music industry’s power dynamics, despite Congress’s (and the authors’) initial hopes that Section 203 would be a tool for change.

NITs a No-Go: Disclosing Exploits and Technological Vulnerabilities in Criminal Cases

Rupinder K. Garcha

Network investigative techniques (NITs) are law enforcement tools that allow the government to hack into targeted computers by exploiting technological vulnerabilities. NITs have succeeded in identifying and locating criminal actors operating on the Dark Web where traditional investigative techniques have failed. They play a critical role in the investigation of cybercrime and in the national security sphere. But disclosure of a NIT’s code can render it useless and jeopardize government operations that rely on that code. In numerous federal cases, criminal defendants have sought access to NIT code, and courts have had to decide whether the government must disclose the code. The government’s interest in confidentiality is inherently at tension with criminal defendants’ right to discovery and information material to their defense.
In order to make informed decisions about disclosure, courts must be cognizant of the equities at stake and understand technical details about NITs. Courts can better equip themselves by holding ex parte and in camera proceedings, and appointing experts to augment their understanding of technical issues. These procedures can ensure that the government is held accountable, defendants’ rights are protected, and NIT code is preserved. As the Dark Web expands, cybercrime is likely to become more pervasive, and criminal actors will devise more sophisticated means of anonymizing their presence online. Law enforcement will have to respond creatively and courts must be prepared to tackle novel issues that straddle technology and law.

To Seize the Initiative: Assessing Constitutional Due Process Challenges to the Defend Trade Secrets Act’s Ex Parte Seizure Provision

Stephen D. Levandoski

In an effort to protect innovation and increase trade secret enforcement, Congress passed the Defend Trade Secrets Act in 2016. The law contains an ex parte seizure provision that provides for the seizure of property in order to prevent the theft or transmission of a trade secret. This Note is the first to argue that the ex parte seizure provision raises serious constitutional due process concerns. It proceeds by framing the seizure provision within its historical and legislative context, identifying infirmities in the provision through the lens of due process, and addressing larger practical and policy implications. The potentially widespread and lasting effects of the seizure provision on employee mobility, innovation, and competition underscore the importance of eliminating the provision or severely limiting its scope.

Access Denied: Tracking as a Modern Roadblock to Equal Educational Opportunity

Viona J. Miller

It has been more than sixty years since Brown v. Board of Education, and our country still presents children with dual and unequal systems of education. Not only are students segregated between school districts, but segregation is happening within school buildings as well as through tracking. Tracking is the process by which students are placed into higher or lower subject-specific courses such as math or science—sometimes as early as elementary school—based on their perceived abilities. This practice prohibits many students from accessing high-level courses. Courses such as Advanced Placement (AP) and honors classes have become indispensable for applying to college, but under a tracked system, if students do not take advanced classes in middle school, they will likely not be able to take advanced courses before graduating high school. Proponents of tracking argue that it is an efficient model of education that allows students to learn based on their skill level, but research shows that students are tracked along racial and class lines rather than on “ability.” Tracking causes both academic and psychological harm to students in lower tracks, and the opportunities students in higher tracks receive, as opposed to their innate intellectual abilities, are what cause them to succeed. In this Note, I argue that tracking is an inherently inequitable system that should be abolished since it denies so many students the resources, learning opportunities, and access to higher-level courses needed to succeed in today’s society. The legal tools that have been employed to dismantle this system under federal law—the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act—have had limited success, so this Note points to state law as a possible solution. State constitutions contain educational mandates and equal protection clauses that together require states to provide children with an equal educational opportunity. Under this doctrine, many courts have established that states must provide students with the opportunity to gain the skills necessary to compete in a changing society. Although state equal educational opportunity litigation has primarily occurred in the school finance context, this legal tool could be extended to tracking. A finding that tracking violates a student’s right to an equal educational opportunity would require school districts to detrack and open the door so that all students, regardless of race, class, or parental influence, have the opportunity to succeed.

Incentivizing Pharmaceutical Testing in an Age of Off-Label Promotion

Ryan Sila

In 2012, the Second Circuit held that under the First Amendment, pharmaceutical manufacturers have a right to promote their drugs for uses for which that they have neither been clinically tested nor FDA-approved. Weighing heavily in the Second Circuit’s analysis was the argument that the FDA’s prohibition on so-called “off-label speech” inhibited physicians’ access to complete information, thereby harming public health. That line of reasoning has also created skepticism within Congress of the FDA’s policy. Others argue that the prohibition on off-label speech is necessary in order to incentivize manufacturers to clinically test their drugs for all intended uses—a process that not only allows the FDA to certify the drug as safe and effective in each of its uses, but also creates a larger data set about a drug’s effects before it begins to be marketed and prescribed. If manufacturers can market their pharmaceutical products for unapproved uses, they have reduced incentives to seek FDA approval, especially because the required clinical tests are extremely costly. Whatever one believes about a policy of permitting off-label promotion, it is clear that it not only creates benefits, but it also creates costs. This Note considers regulatory and common-law tools to reduce those costs. It rejects available regulatory tools, because either they are too weak to change manufacturers’ incentives to conduct clinical tests, or they suffer from the same constitutional questions that troubled the Second Circuit. Instead, this Note argues that courts can hold manufacturers to a common-law duty to test their drugs for each use for which they market them, and it outlines what such a duty might entail. Such a solution, if properly implemented, would not only mitigate the concerns about the liberalization of off-label promotion, but it would also be supported by modern products liability doctrine.

Supported Decision-Making in the Lone-Star State

Eliana J. Theodorou

“Supported decision-making,” an alternative to guardianship that allows an individual with an intellectual or developmental disability to retain his or her legal capacity and make decisions with the assistance of trusted supporters, has been gaining traction in the United States since the mid-2000s. Scholars have highlighted the significance of the UN Convention on the Rights of Persons with Disabilities (CRPD), which entered into force in 2006, in explaining the recent rise in interest in supported decision-making across the world. CRPD Article 12 recognizes that people with disabilities are entitled to equal recognition of their legal capacity by states parties and requires states parties to provide the support that people with disabilities may need in exercising legal capacity. In 2015, Texas became the first state in the United States to pass legislation formally recognizing supported decision-making agreements as alternatives to guardianship. Attention to Texas’s experience suggests, however, that the CRPD may have limited salience in conservative state legislatures, and demonstrates that other forces are contributing to the appeal of supported decision-making in the United States today. Part I provides a brief overview of guardianship and supported decision-making, and discusses how supported decision-making has many features that are simultaneously appealing to actors within the disability rights movement and American political conservatives. Part I next discusses Texas’s initial interest in supported decision-making and its 2009 supported decision-making pilot project. Part II identifies two issues that put guardianship in general on Texas legislators’ agendas in the years leading up to the passage of supported decision-making legislation: the issue of guardianship abuse and concerns about the impact of the aging of the population on probate courts. Part III explains how advocates organized to draft and pass supported decision-making legislation and other guardianship reform bills. Section A provides an overview of the legislation ultimately passed; Section B focuses on the organization of the Guardianship Reform and Supported Decision-Making Workgroup (GRSDM) and its community-organizing style of work; Section C explores how GRSDM won the support of key, influential stakeholders; and Section D shows how different actors used different narratives to promote sup- ported decision-making, with some emphasizing self-determination, while others emphasized efficiency and cost savings. Part IV discusses lessons that can be applied in other states and Texas’s implementation efforts so far.

Solving the IDEA Puzzle: Building a Better Special Education Development Process Through Endrew F.

Allison Zimmer

When it was first enacted, the Individuals with Disabilities Education Act (IDEA) had the potential to function both as a progressive statement on the rights and needs of children with disabilities and as a concrete mechanism for promoting the educa- tional progress of students with special needs—a population that had previously been all but denied access to the classroom. Yet despite the Act’s potential, over forty years of court precedents interpreting the Act have resulted in a diluted, unimaginative reality. The result is a system of inadequate education for students who most need educational revitalization: (1) a “continuum of alternative placements” provision that allows schools to provide students with only a bare outline of one-size-fits-most, group-based programming; (2) a “least restrictive environment” provision that does little to require that schools place students in public, integrated settings; and (3) an “educational benefit” standard that is far too comfortable with the status quo. This Note begins by tracing the failures of the IDEA in the delivery of special education today, characterized by the low academic achievement of students with disabilities, high rates of incarceration and exclusionary discipline, and a lack of imagination on the parts of districts and teachers. The Note then proceeds to explain how educational inaction has been allowed to persist through a policy of judicial deference to districts, with courts failing to demand bold action or creative generation of new and innovative special education programs. Despite these failures, this Note argues that the Supreme Court’s recent decision in Endrew F. v. Douglas County School District RE-1 can be used to help advocates move courts and districts out of the largely stagnant provision of special education services, where schools continue to rely on the same ineffective and dated programs rather than developing new methods to reach children with disabilities who continue to struggle in school. This Note argues that the language of Endrew F. can be read to promote a more rigorous, guided process of program development, helping advocates evaluate a district’s process and communicate failures to courts in a way that authorizes courts to act to correct these failures. In moving beyond the status quo and requiring that schools engage in constant growth, Endrew F. has the potential to solve the “puzzle” of the IDEA’s three primary provisions which, through court interpretations and decades of neglect, has led to a stalemate that incentivizes inaction rather than solutions. This Note’s novel interpretation of Endrew F. encourages a more robust reading of the Act, which will in turn support the growth and development of children with disabilities across the nation’s public schools.