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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.

In this Note, the author argues that sunset provisions associated with tax legislation are, in their current form, the product of political maneuvering designed to bypass budgetary constraints and are exploited as a means of enacting what is, in reality, permanent legislation. The use of sunsets in this manner has lead to considerable uncertainty regarding the future of their associated tax provisions. This uncertainty, in turn, has created opportunities for legislators to extract rents from lobbyists, generated inefficiencies for both taxpayers and the government, and increased overall tax code complexity. These problems can be minimized, however, if sunsets are used in a more principled manner. This Note argues that sunset clauses in tax legislation can be made more efficient by limiting both the occasions in which sunsets are employed as well as the procedures used to implement them. First, sunsets should only be used in conjunction with certain kinds of tax incentives: The incentives should be simple, of limited duration, and provide diffuse rather than concentrated benefits. Second, sunsets should only be implemented through a limited set of congressional budgetary procedures: They should only be included as part of the reconciliation process for enacting fiscal legislation if the underlying bill increases rather than decreases revenue, and if Congress enacts and adheres to a revenue-neutral, pay-as-you-go set of budgetary rules. These changes, both substantive and procedural, will increase overall efficiency in the use of sunset provisions in tax legislation.

Federal judges are expected to conduct themselves differently than their counterparts in the political branches. This Note considers the policy and historical reasons used to justify this different standard of conduct and concludes that these justifications are largely unsupported or overstated. These erroneous justifications obfuscate the debate over extrajudicial conduct and may result in a suboptimal level of extrajudicial activity.

There is widespread confusion both in policy circles and in the academic literature about how to measure the progressivity of a tax change. The confusion is particularly vexing because policymakers and analysts often rely on progressivity as a guidepost in constructing and analyzing policy, but do little to justify the particular progressivity measures that they employ. Progressivity measures—which can differ considerably from one another—tend to be picked haphazardly or chosen based on arguments that have rhetorical flair but lack normative substance. Thus, policy is being constructed and evaluated based on distributional measures that may not be meaningful and, in fact, may be misleading. This Note proposes a framework for analyzing measures of progressivity. In particular, if the measures are to gauge accurately changes in tax fairness, progressivity measures must be rooted in whatever theory of distributive justice motivates our concern for distribution. This Note applies this approach and draws connections between particular measures of progressivity and individual theories of distributive justice.

The proper duration of legislation has become highly controversial as a result of the enactment of many temporary tax laws during the George W. Bush administration. The prevailing view is that inclusion of an expiration date or “sunset” feature in legislation permits the cost of the legislation to be misrepresented and allows its proponents to escape the discipline intended by the congressional budget process. Under this view, fiscal discipline is preserved through enactment of so-called permanent legislation.

This Article challenges that view and shows that, barring estimation error, the legislative process accounts completely for the costs of “temporary-effect” legislation but not permanent legislation. Consequently, enactment of temporary-effect rather than permanent legislation would promote more political accountability and may result in greater fiscal restraint. In addition, when temporary-effect legislation expires, the legislative process fully takes into account the cost of any extension. Extension of such legislation, therefore, competes with, and potentially displaces, adoption of other legislation. By contrast, the cost of continuing permanent programs largely disappears in the legislative process, and therefore continuation of such programs produces little or no crowding-out effect. This Article also addresses whether other features of the legislative process could overcome the problems associated with the budget accounting of permanent legislation and responds to criticisms of temporary-effect legislation.

Prohibition of alcohol from 1919 to 1933 is a paradigmatic case of sumptuary legislation gone awry. Instead of removing alcohol from the market, Prohibition increased alcohol’s potency and decreased its quality, resulting in a spike in drunkenness and accidental deaths while black market corruption and violence abounded. The same criticisms are often leveled at the War on Drugs. However, this Note explores the most important difference between the two, namely, that in spite of their symmetrical failures, Prohibition was met with a decisive backlash and repeal while the War on Drugs retains popular support despite having created incomparably greater violence. This is dramatically illustrated by the war in Mexico, which is currently the most violent conflict in the world. The causes and implications of this divergence in public choice are explored below.

In the United States, the tripartite system ensures the rule of law by dividing the power to make laws between Congress and the President. The system, however, makes virtually no provision for moments of grave emergency, in which the President is expected to act before authorization from Congress can be secured. As a result, presidential discretion—exercised first in emergency—creeps into nonemergency governance, corroding the rule of law.

This Note employs John Locke’s concept of the federative power to define the emergency moment as limited to that period of time during which it is logistically impossible for Congress to approve executive action. From there, it proposes an administrative agency, the Federal Emergency Board, with the power to declare an emergency during this interval, thereby authorizing and legalizing the exercise of executive power.

Without ignoring the somewhat fantastical nature of this proposal, this Note engages seriously in a discussion of its constitutionality. It explores the remedies that would remain available to individuals whose rights were violated during a declared emergency. Finally, it examines whether a sitting President would be likely to seek authorization for his emergency action. It concludes that, at the very least, the existence of the Federal Emergency Board would remind Americans that the system of checks and balances does not disappear during moments of emergency.

This Article argues, contrary to conventional accounts, that the animating purpose of the American Constitution was to facilitate the admission of the new nation into the European-centered community of “civilized states.” Achieving international recognition—which entailed legal and practical acceptance on an equal footing—was a major aspiration of the founding generation from 1776 through at least the Washington administration in the 1790s, and constitution-making was a key means of realizing that goal. Their experience under the Articles of Confederation led many Americans to conclude that adherence to treaties and the law of nations was a prerequisite to full recognition but that popular sovereignty, at least as it had been exercised at the state level, threatened to derail the nation’s prospects. When designing the Federal Constitution, the framers therefore innovated upon republicanism in a way that balanced their dual commitments to popular sovereignty and earning international respect. The result was a novel and systematic set of constitutional devices designed to ensure that the nation would comply with treaties and the law of nations. These devices, which generally sought to insulate officials responsible for ensuring compliance with the law of nations from popular politics, also signaled to foreign governments the seriousness of the nation’s commitment. At the same time, however, the framers recognized that the participation of the most popular branch in some contexts—most importantly, with respect to the question of war or peace—would be the most effective mechanism for both safeguarding the interests of the people and achieving the Enlightenment aims of the law of nations. After ratification, the founding generation continued to construct the Constitution with an eye toward earning and retaining international recognition, while avoiding the ever-present prospect of war. This anxious and cosmopolitan context is absent from modern understandings of American constitution-making.

Whether and how to provide transition relief from a change in legal regime is a question of critical importance. Legislatures and agencies effect changes to the law constantly, and affected private actors often seek relief from those changes, at least in the short term. Scholarship on transition relief therefore has focused almost entirely on examining when transition relief might be justified and now recognizes that there may be settings where relief from legal transitions is appropriate. Yet largely absent from these treatments is an answer to the question of which institutional actor is best positioned to decide when legal transition relief is appropriate and what form it should assume. In this Article, we address this issue in two parts: Can the private market develop adequate risk-spreading devices such that government relief is unnecessary? If government relief is warranted, what government actors are best suited to provide relief? We find that private markets will be unable to provide adequate transition insurance due to insurmountable pricing difficulties, and that the task must thus fall to governmental actors. We then analyze the available governmental actors and conclude that, in many cases, an independent agency will be best positioned to make reliable and welfare-enhancing decisions regarding transition relief.

The world faces collective action problems that are global in nature and scope, rendering nation-states unable to achieve desired goods individually. Issues such as global climate change and systemic financial risk create externalities that impel the existence and intervention of a world government to avoid suboptimal market equilibria, free-riding, and moral hazards. I submit the European Union’s principle of subsidiarity as an organic, legitimizing framework for global governance that both compels and cabins a world government. Subsidiarity optimizes social welfare by enabling a world government to achieve desired goods that nation-states would be otherwise unable to obtain individually because of collective action problems. But subsidiarity also limits a world government through a presumption in favor of local regulation as a matter of national autonomy and efficiency. The efficiency concern also enables subsidiarity to be an expansive principle for global governance because it accommodates both public and private forms of collective action. Public forms of collective action include public regulations, treaties between nations, and public institutions like the World Trade Organization. Private forms of collective action include free-market Coasian bargaining between private parties and the efforts of private international institutions like Greenpeace. Because subsidiarity accounts for these diverse institutions in a large and complex world, it is an ideal balancing principle for global institutional choice.