Volume 96, Number 6
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.
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.
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.
Racial Exclusion in Private Markets: How the New Accredited Investor Standard Is Arbitrary and Capricious
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.
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.
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.
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
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.
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
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.
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.