Feedback to SSRN (Beta)
What type of feedback would you like to send?
Abstract: This article explores the tension between constitutionalism and democratic majoritarianism in the context of emerging democracies characterized by deep ethnic or religious fractures. For many years, the political science orthodoxy prescribed a strategy of "consociationalism" that settled power-sharing arrangements as a bargain between political elites and rendered politics to a perpetual recognition of the primacy of ethnic or religious divides. The history of consociationalist experiments, in countries such as Lebanon and Cyprus, has been one of numerous unfortunate descents into communal warfare. Since the fall of the Soviet Union, there has been a dramatic new round of nation-building in formerly repressive and fractured societies. Rather than turn to consociationalism to constrain the risk of unbridled majoritarianism and the threat of communal war, these countries have by and large employed a form of strong constitutional authority, typically enforced by an independent constitutional court, to prevent democratic politics from consuming itself. This article contrasts the experience of two such countries: South Africa and Bosnia. South Africa presents an example of a judicially-enforced constitutional order that allowed a remarkably stable multiracial society to emerge from the fall of apartheid. Bosnia, by contrast, came into the era of independence through a structured political power-sharing among the various ethnic groups, enforced through the Dayton peace accords. In both cases, the national constitutional courts played a critical role in attempting to secure the transition to stable democratic governance. In the case of South Africa, that was a role directly contemplated by the transitional accords. In the case of Bosnia, however, the Bosnian Constitutional Court was compelled to unwind some of the consociationalist strands of Dayton in order to prevent a renewal of ethnic factional war.
constitutionalism, democracy, consociationalism, South Africa, Bosnia
Abstract: Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes, and to re-interpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crisis. This history illustrates that courts have rejected both of the two polar positions that characterize public discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times, and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks if any should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in this country during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress as well as the executive has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers.
national security, civil liberties, constitutional law
Abstract: A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles. We offer a preliminary reaction to the Court's decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Court's failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats. Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive - whatever that term means, and whether it even has any agreed-upon meaning - will come before courts, and lack of candor about what courts are doing may carry its own costs. Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Court's initial refusal to enter the political thicket rested on its view that malapportionment suits challenge not a private wrong, but a wrong suffered by [the state] as a polity. The Warren Court Reapportionment Cases responded by declaring that malapportionment claims are individual and personal in nature. Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Court's recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Court's intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.
political gerrymanders, Vieth v. Jubelirer, Cox v. Larios
Abstract: Two primary arguments are advanced for the contemporary functional importance of federalist constraints on centralized political power. The first is captured in Justice Brandeis's famous invocation of the states as the laboratories of democracy in which a single courageous State may blaze new paths by trying novel social and economic experiments. The second ties the smaller, decentralized scale of subnational units to a more robust democratic accountability, by which government is brought closer to the people, and democratic ideals are more fully realized. This Article is largely about circumstances in which these two arguments for federalism fail. The question that concerns us is what happens when one state's experimentation poses risks to the rest of the country, in the form of spillover effects that adversely affect citizens of other states. In such circumstances, not only may the benefits of heterogeneity fail, but also the citizens of other states are deprived the political means of compelling democratic accountability on economic actors shielded by other states' claims of sovereignty. In this Article, we will address the emergence of partial federalization of areas historically governed by state law. Our approach is to think of the battles over federalism as running across two dimensions. The more familiar is the question of which law controls, state or federal. But a second dimension is the battle over which forum should control, state or federal, and which is to be the catalyst for new legal norms. Focusing on the rise of federal preemption of state law, on the expansion of the federal forum through federal question subject matter jurisdiction or the newly minted Class Action Fairness Act, and on the constitutional override of matters formally assigned to state law, such as punitive damages, we hope to highlight and explain a quiet federalization of vital areas of law - one far less noticed than the heavily (and perhaps overly) publicized limitations on federal regulation of internal matters of state governance. Our main argument is that the Supreme Court has, in preemption and forum allocation cases, attempted to capture the considerable benefits that flow from national uniformity and to protect an increasingly unified national (and international) commercial market from the imposition of externalities by unfriendly state legislation. We hope to give a broader rendition of the legal response to market pressures toward predictability and uniformity than would emerge from a narrow focus on formal constitutional doctrine. We also aim to underscore aspects of horizontal federalism - namely policing relations between the States - that have tended to be obscured by the looming shadow of vertical federalism - namely, the balance of power, and division of labor, between federal and state sources of authority.
preemption, federalism, Class Action Fairness Act, punitive damages
Abstract: The dramatic expansion in consumer credit, particularly through the ready availability of credit cards, raises significant questions about checks on potentially unscrupulous behavior. In democratized markets characterized by large sellers and small transaction consumers, there is the risk that marginal charges may impose costs not worth the consumer's bother, but amounting in the aggregate to significant gains for the seller. This article examines the problem of insufficient regulatory responses as a result of the creation of effective barriers against deterrence-based oversight of the credit card market. The first barrier is the ability of small states to export favorable treatment of banks issuing credit cards under the National Banking Act and the role of federal preemption in foreclosing any response by other states. The second is the spreading use of binding arbitration clauses precluding class actions by most major credit card companies in their agreements, thereby effectively threatening any ex-post accountability for misbehavior. This article is a first cut examination of the role of ex post accountability as a form of weak paternalistic regulation, regulatory responses that leave wide berth for contractual initiatives ex ante but demand effective checks after the fact. From this perspective, we suggest these impediments to collective enforcement mechanisms are of sufficient consequence as to require exacting judicial scrutiny. The recent decision by the California Supreme Court views arbitration clauses from a functional perspective, one that assesses both the vulnerability of consumers and the availability of meaningful means of redress. Ultimately, the California court's decision may provide the best method of achieving some accountability within the boundaries of weak paternalism.
credit cards, class actions, behavioral law and economics
Abstract: In the courts and in the academy, the ostensible commitment of American tort law to individualized justice has experienced a sustained revival in recent years. Neither the modern mass tort case-law nor the scholarly literature, however, has adequately grappled with long-standing practices of de facto aggregation that have sprung up in the shadow of American tort law since the very beginnings of tort as a field. Reviewing more than a century of private aggregation from employers' liability to automobile accident litigation to the modern asbestos cases, this article contends that American tort practice has been characterized almost from the start by decentralized and private institutions for the aggregate resolution of what may be described as "mature torts": personal injury cases that resolve themselves into regular and reiterated fact patterns. Private settlement institutions constitute a powerful counter-tradition to much better-known traditions of individualized justice in American tort law. The article begins with a historic account of the role of claims agents, sometimes lawyers but sometimes not, in providing claimants' side aggregation to offset the economies of scale and information that the coordinated defenders of local manufacturers or public transport companies held. The article then traces the same pattern of routinization and efficient claims settlement from the industrial setting to seemingly idiosyncratic, one-time events such as auto accidents. By focusing on the institutional actors who administratively expedite settlement of similar claims, the article adds a missing ingredient to the theoretical literature on settlement. It is not only shared assessments of the legal authorities governing claims that inform settlement, but the actual experience of repeat-play legal representatives in resolving factually similar cases in the past. The article concludes with an examination of the mass asbestos settlements rejected by the Supreme Court in Amchem and Ortiz. In contrast to the Court's characterization on these mass settlement cases as departures from a "day in court ideal," the article argues that the persistent aggregation of mature tort claims in private settlement markets situates the mass tort class action on a continuum of aggregating practices in American tort law. Moreover, the long-standing existence of private markets in aggregated settlement indicates that the truly distinctive challenges raised by class actions arise out of the monopolistic representation awarded to class counsel and the difficult agency relations that may ensue, not out of the mere fact of aggregation.
Torts, Class Actions, Lawyers, Automobile Accidents, Employers' Liability, Asbestos
Abstract: This is the 2000 Mason Ladd Lecture delivered at Florida State. It is intended primarily for law students as a guide to the different approaches to the question of why cases actually litigate. The article begins with the premise that in any dispute the only mechanism for reducing the joint welfare of the parties is to engage agents to litigate the distribution of the contested assets. Beginning with that premise, the Article traces the various explanations given for why cases do actually proceed to litigation. The first part of the article is a rendition of the classic account from the economic analysis of law. The second, and longer, part of the Article then turns to various behavioral insights that call into question some of the simpler assumptions of the standard law and economics account of litigation. The paper includes data drawn from posing classic framing questions to the first-year body at FSU to highlight some of the behavioral considerations in litigation.
Abstract: This paper considers Europe's experiment with aggregate litigation in light of American experience. European thinking on the topic appears to have reached consensus on two points: first, aggregate litigation will soon be the norm for Europe; and second, whatever form European aggregate litigation takes, it will not replicate American class action litigation with its domination by entrepreneurial plaintiffs' attorneys. We first examine four sources of dissatisfaction with the class action to assess which are meritorious, which are ill-founded, and which derive from a deeper debate over whether or not there should be private legal accountability for consumer claims. Drawing on America's long history of collective enforcement, we then ask whether Europe will adopt the incentives and institutional arrangements necessary to make aggregate litigation an effective remedy. Our concern is that Europe's revulsion at accepting the reality of legal enforcement as an entrepreneurial activity may leave the incipient reforms without the necessary agents of implementation.
Abstract: Among the current controversies in class action law is the question of when cases are properly classified as (b)(2) as opposed to (b)(3) class actions. Much rides on the distinction, particularly since the manageability requirement of Rule 23(b)(3) may frustrate the certifiability of claims. Even the classic forms of class actions, such as the employment discrimination disparate impact claim, may be caught up in these debates, as evident from the split between the Fifth Circuit in Allison and the Second Circuit in Robinson. This Article attempts to redirect the inquiry by focusing on the preclusive effect of class actions. The key focus is on the constitutional implication of the right to opt out, with a focus not so much on the high value cases, such as the mass tort, but on class actions in which the bulk of the class has claims that are unlikely to merit individual prosecution. I want to suggest that the right to opt out may be of considerable significance in this context, although not necessarily because of a meaningful exit strategy from the class. Rather, the right of exit may be thought of as significant not because of the prospect of individual removal from any particular case, but instead, because of its impact on the preclusive effect of class action litigation. The argument proceeds in two parts. First, I want to examine the case law surrounding the right to opt out of a class action as a determinant of the future preclusive effects of a judgment on absent class members. The key case here is the Ninth Circuit's decision in Brown v. Ticor Title Insurance Co. and the key insight is the inability to preclude future individual claims unless class members have been afforded an opportunity to opt out in the initial class action. I then apply the rationale of Ticor to the current dispute over the scope of Rule 23(b)(2) certification in the employment discrimination context. Second, I want to look at the emerging cause of action for medical monitoring to show a direct application of the limitations on the preclusive effects of class actions that do not afford an individual right of exit. The conclusion will then focus on the nature of the class action certification as determining its future preclusive effects on absent class members.
class actions, opt out, medical monitoring
Abstract: The law of class actions has emerged prominently in the Supreme Court?s docket in the past few Terms through repeated confrontations with the relatively recent emergence of the settlement class action. In the three leading cases, Matsushita v. Epstein, Amchem v. Windsor Products, and Ortiz v. Fibreboard, the Court has traced an uncertain line between the efficiency mandates of aggregate dispute resolution and the fairness concerns of the absent class members. Because each arose in the settlement context there is a blurring of what should be two distinct questions in the class certification context: the necessity of class treatment to overcome collective action barriers to the prosecution of perceived group harms, and the question of who should control the class action and under what terms. Because these two questions are addressed jointly as part of the certification inquiry, courts have had great difficulty separating out their particular attributes. This article argues that a specific focus on the governance of the class action brings into sharper relief the core difficulty in the functional analysis developed by the Court in Amchem and Ortiz. In attempting to control abusive class action practice from within the loose standards of Rule 23 of the Federal Rules of Civil Procedure, the Court identifies rather than fully explains the potential mischief in the class action settlements it condemns. By focusing more clearly on these cases as governance problems, the Court?s analysis may be reconceptualized as a classic principal-agent problem in which there are insufficient checks on opportunistic or self-serving behavior by the agents. This approach rejects the Court?s retreat in both Amchem and Ortiz to rule-based formalism focusing on the technical requirements and the amendment process for Rule 23. Instead, Amchem and particularly Ortiz are analyzed as extremely positive developments of a due process based analysis for the law of representative actions. This due process approach rests the propriety of class certification on the guarantees of loyalty of the agents for the absent class members (first and foremost class counsel) to those whose rights must ultimately be adjudicated in absentia. By contrast to the rule formalism evident in both Amchem, with regard to the technical requirement of manageability for certification under Rule 23(b)(3), and Ortiz, concerning the requirement of a truly limited fund for certification under Rule 23(b)(1), both opinions also apply a highly functional analysis to the adequacy of representation determination of whether the absent principals were loyally served by their agents. In turn, while adequacy of representation is part of the rule-based certification inquiry under 23(a)(4), this article suggests that once the governance issue is examined independently, it forms part of a robust due process tradition linking the current class action cases to more distant predecessors such as Hansberry v. Lee and Martin v. Wilks.
Abstract: As redistricting reaches its decennial peak, and as courts await the next round of redistricting litigation, it is worthwhile revisiting some of the fundamental tenets of the law governing gerrymandering. This article asks three interrelated questions. First, beginning with the apparent collapse of any effort to control partisan gerrymandering, the article inquires as to the different treatment given to geographic carve-ups of territory between competing political parties and the condemnation that would ensue if market rivals were to attempt to divide their respective zones of influence so as to preserve market share. The second part of the argument shows that this results from the Supreme Court having fastened on limited doctrines of individual rights and non-discrimination in the political arena, while allowing product markets to be governed by notions of consumer welfare and the preservation of competition. The article then concludes with a proposal to remove from insider political operatives the power to redistrict in order to promote a more competitive political process. The result of this approach would be to render suspect all purposeful districting, thereby taking the pressure off of the vulnerable category of race. The aim is both to restore competition to the political process and to show a possible way out of the post-Shaw v. Reno morass.
Abstract: Democratic regimes around the world find themselves besieged by antidemocratic groups that seek to use the electoral arena as a forum to propagandize their cause and rally their supporters. Virtually all democratic countries respond by restricting the participation of groups or political parties deemed to be beyond the range of tolerable conduct or viewpoints. The prohibition of certain views raises serious problems for any liberal theory in which legitimacy turns on the democratic consent of the governed. When stripped down to the essential, all definitions of democracy return ultimately to the primacy of electoral choice and the presumptive claim of the majority to rule. The removal of certain political views from the electoral arena calls into question the legitimacy of the choices that are then permitted to the citizenry and, by extension, the entire democratic enterprise. This article asks under what circumstances may democratic governments act (perhaps, must they act) to ensure that their state apparatus not be captured wholesale for socially destructive forms of intolerance. The problem of democratic intolerance takes on special meaning in deeply fractured societies, in which the electoral arena may serve as a parallel or even secondary front for extraparliamentary mobilizations. Such democratic societies are not without recourse to the threat of being compromised from within. At the descriptive level, the prime method is the prohibition on extremist participation in the electoral arena, a practice which exists with surprising regularity across the range of democratic societies. Seemingly the world has learned something since the use of the electoral arena as the springboard for fascist mobilizations to power in Germany and Italy. The primary concern in this article is with the institutional considerations that either do or should govern restrictions on political participation, with particular attention to how these have been assessed by reviewing courts in a variety of countries, including Germany, India, Israel, Turkey, the Ukraine, and the United States. The article distinguishes among the types of parties that may be banned or impeded, with the greatest attention being given to mass antidemocratic parties that actually seek to win elections. Further lines are drawn among types of prohibitions, ranging from the use of criminal sanctions in the U.S. to party prohibitions in most European countries to restrictions on electoral speech and conduct in India. Ultimately, the argument is that democratic societies must have weapons of self-preservation available to them, but that strong institutional protections must be in place before they may be deployed.
Democracy, elections, political parties, extremism
Abstract: Robert Dahl, in "How Democratic is the American Constitution?", criticizes the institution of the Electoral College as "morally, politically, and constitutionally wrong." This Article addresses the third of those claims. Dahl's critique, like many directed against the Electoral College, presumes a constitutional commitment to majoritarianism. This Article examines the rather commonplace departures from strict majoritarian rule in the Constitution, and concludes that the distortions from majoritarian preferences created by the Electoral College are actually much smaller in scope than those created by the U.S. Senate, the Article V amendment process and, to some extent, the House of Representatives. Moreover, subsequent constitutional developments - namely the "Reapportionment Revolution" of Baker v. Carr and later cases - have not enshrined a constitutional principle of simple majoritarianism that might undermine the constitutional foundation of the Electoral College. The Article then explores the controversies surrounding the presidential elections of 1800 and 1876 to argue that there are nonetheless important constitutional principles at stake in the operation of the Electoral College, namely in the manner in which Congress dictates rules for the settlement of disputes arising from presidential elections. The Article concludes by discussing one aspect of the Electoral College that could be susceptible to constitutional challenge: the "winner-take-all" system employed by nearly all states to allocate electoral votes. This practice, which is not mandated by the Constitution, could be challenged, not on the grounds that it is inconsistent with majoritarianism, but rather on the grounds that it gives the majority too much power - an argument that finds much stronger support in our constitutional jurisprudence.
Elections, Presidential Selection, Electoral College
Abstract: Settlements dominate the landscape of class actions, and the value of claims so resolved corresponds directly to the finality that the settlement offers. The law of class actions remains surprisingly unsettled, however, on where judicial review of class settlements may take place, what that review encompasses, and how the parameters for review should be defined. This article offers a cohesive account of the where, what, and how questions surrounding class settlement review, with particular attention to the long-running debate over collateral attacks on such settlements. The where questioned is informed by the recognition in the Class Action Fairness Act (CAFA) of the difficulties presented by what one might describe charitably as the anomalous court - for CAFA proponents, one inclined to certify a nationwide class action when the vast majority of other courts would not. Most of the class action commentary assumes the original certifying court to be suspect and the subsequent reviewing court to be virtuous. Our contention is that the problem of the anomalous court is not confined to the initial class certification. The same problem of outlier courts can arise when the parties agree to park a class settlement for approval and, later, where a class member might mount a collateral attack on its binding effect. In the first instance, we look to see whether the forum for the class action was congressionally mandated or subject to strategic behavior by the parties. The what question calls for a distinction between structural conflicts of interest in the class representation and other defects in the nature of bad deals for some or all of the class members. Only the former kind of defect bespeaks a proceeding illegitimate from its outset in a manner akin to the sorts of jurisdictional deficiencies thought to warrant collateral attacks on judgments in ordinary litigation. The how question is one of proper preclusion for class settlements. The term collateral attack has been used sloppily to encompass everything from appeal to relief from the judgment to outright circumvention by filing anew in a different jurisdiction. In this section, we disentangle the various forms of procedural challenge to class action settlements and propose that the level of preclusion be conditioned by where the original suit was filed, how the challenge is presented, and what is the basis of the asserted challenge. Greater preclusion against collateral attack should flow from use of the congressionally preferred forum, as delineated by CAFA, as compared to the potentially anomalous court selected simply by settling counsel. The scope of preclusion should correspond, moreover, to the nature of the defect alleged in the class representation. Structural conflicts of interest warrant an approach that asks whether the rendering court considered and rejected the conflict in question, though not necessarily at the behest of the class member now the proponent of a collateral attack. Bad deals, by contrast, warrant an approach that would ask simply whether there was a full and fair opportunity to challenge the fairness of the settlement in the rendering court, in keeping with the broadened approach to standing in that setting in the Supreme Court's 2002 decision in Devlin v. Scardelletti.
Adequate representation, CAFA, Class Action Fairness Act, class actions, class settlements, collateral attacks, due process
Abstract: Focusing on the election of Arnold Schwarzenegger as governor in California, this article examines the curious reemergence of direct democracy. The article begins by tracing the disfavored status of any direct democratic mechanism in the original constitutional design. In addition, the use of recalls further violates the Framers' commitment to fixed terms of office to insulate wise political leadership from immediate accountability to the potentially inflamed desires of political majorities. Despite this background, the Article argues that a significant part of the current impulse toward plebiscitary forms of governance owes to the increasing unaccountability of legislative branches of government toward median preferences. As a result of gerrymandering and other distortive features of modern districting, there is a growing gulf between increasingly polarized and fractious legislative delegations and the centrist preferences of the bulk of the voting public. Schwarzenegger provides a striking example with a candidate able to muster half the votes in a crowded field, yet running on a platform that could not have prevailed in the primary of either major party. This article was originally presented as the 2004 Cutler Lecture at William and Mary.
Democracy, elections, competition
Abstract: This article addresses the increased difficulty that the diversity-based defense of affirmative action has faced in the courts. The central argument is that proponents of preferential admissions fastened on the diversity label in order to seek the apparent safe harbor offered by Justice Powell's Bakke opinion. Unfortunately, diversity has proved a fragile defense. First, it does not provide an adequate description of the actual admissions practices of institutions engaging in affirmative action. Second, it is not clear that the normative force of diversity is sufficient to overcome the heavy presumptions that attach to the use of overt racial considerations in official decisionmaking. The article then examines the question of affirmative action from an express commitment to the integration of black Americans. Although this too is a problematic defense in the courts, it has the advantage of both being descriptively accurate about the practices of educational institutions and normatively honest about why higher education is committed to the defense of affirmative action.
Abstract: This article addresses some of the more difficult and perhaps unresolvable problems that emerge when courts are forced to confront the question of what is the proper polity to resolve deeply contested issues. Such cases, which are drawn from courts in many different national settings, typically force a confrontation with the fundamental institutional arrangements of democracy. These cases challenge the ability of courts to mediate highly explosive political questions and provide a cautionary tale of the difficult path that courts must traverse in trying to police the boundaries of constitutional democracy. The discussion will begin with a series of cases in which autonomy rights are claimed by a subset of the population, demanding the right to determine legal and social arrangements independently of the broader community. The most compelling and most famous of these cases addresses whether the people of Quebec had a right to secede from Canada through a direct plebiscite of the Quebecois. In Quebec and in each of the case examples, the judicial resolution is unsatisfying precisely because of the apparent lack of a controlling principle for determining what is the right level of aggregation for collective decisionmaking. The second part of this article then places the difficulty of defining the proper polity in the broader context of longstanding theoretical uncertainty about the nature of collective decisionmaking. The literature on what happens when the people gather to express their will runs the gamut. On the one hand, we believe intuitively that two heads are better than one, and we can extrapolate from that to a much broader reservoir of knowledge when the many decide rather than the few. On the other hand, we know that mobs can act in destructive ways that individuals acting alone could never achieve. And we suspect that as soon as a lot of uninformed or uninterested citizens come together, they are likely to be manipulated by the most self-interested or the most unscrupulous. The Article concludes on a cautionary note for courts confronting these first-order political cases. Although the legal claims are typically cast in the customary form of demands for individual rights of participation, these cases are invariably about deep-seated institutional accommodations. Courts necessarily tread lightly and cautiously when navigating the central institutions of national politics.
Constitution, Democracy, Politics
Abstract: This Essay examines the pressure placed upon choice of law doctrine by the newly enacted Class Action Fairness Act (CAFA). The core argument is that current choice of law doctrine, which assumes fidelity to the forum state choice of law rules as its basic premise, corresponds poorly to the national scope of economic activity in cases brought into federal court under CAFA. The Essay argues that there needs to be some conformity between the national scale of contemporary economic activity and the state-by-state presumption of inherited conflict of laws doctrine in order to provide some sensible legal oversight of national market conduct. Because of the multiplicity of potential forums for litigation of national market activity, the inherited doctrines of Klaxon Co. v. Stentor Electric Manufacturing Co. and Erie Railroad Co. v. Tompkins do little to provide settled expectations about the substantive laws governing broad-scale economic conduct. The Essay offers an approach that should guide choice of law rules in the context of national market cases based on the need to facilitate common legal oversight of undifferentiated national market activity. The claim here is that conduct that arises from mass-produced goods entering the stream of commerce with no preset purchaser or destination should be treated as just that: goods in the national market. In the absence of national choice of law rules, this Essay suggests that courts should, as a default rule, apply the laws of the home state of the defendant to all standardized claims, regardless of the situs of the final injury. The upshot of this approach is to suggest a path for future development of national market cases that have been brought into the federal courts as a result of CAFA.
Conflicts of Laws, class actions, CAFA
Abstract: This paper analyzes the three recent ADA employment cases in the Supreme Court to highlight the unique features of the ADA. While all civil rights statutes have both an antidiscrimination command and a redistributive norm, the ADA is unique in that its definition of discrimination is based in large part on the failure to redistribute. Unlike the customary model of antidiscrimination law, which at its heart compels that similarly situated persons be treated similarly, the ADA begins with a premise of difference and then defines discrimination as the failure to reasonably accommodate those difference. Thus, despite the fact that Congress drafted the ADA to fit the model of Title VII, the ADA uniquely carries a cost burden for employers who, even if they act entirely without animus, may be forced to hire employees with discernibly different skills or abilities. This article argues that the Court's oftentimes tortured analysis of the ADA in the 1999 employment trilogy stems from this basic dilemma: The Court had to make wealth-redistributive value judgments sub silentio under a statutory scheme that obscures the scope of its redistributive mandate with the time-tested language of antidiscrimination. The article begins with an analysis of the divisions between the majority and dissents in these cases that turns on the need to craft rules of judicial administration. While the dissent would allow cases to proceed to the employer's duty to accommodate, and would allow a case-specific analysis to follow, the majority opts for a more restrictive view of the Act that would allow the earlier termination of claims. Under the majority's view, the appropriate threshold is whether an employee is disabled or regarded as disabled in a "major life activity." The court holds that seeking a particular job when other, less desirable positions in related lines of work might be available does not render an individual disabled in such a major life activity. More shockingly, the Court suggested that working is not even a major life activity. This article concludes by asking how this statute is different from other vaguely-worded statutes. The differences between the ADA and other statutes are its unfunded mandate quality, its lack of a bright-line standard, and its inability to spread the costs evenly across society. Ultimately, these difficulties can be traced to the incongruence of a primarily wealth-redistributive statute being imposed on to the form of a but-for discrimination statute.
Abstract: This article explores the preconditions for the transfer of power within democratic regimes. Invariably, constitutional discussion of the necessary preconditions for a successful, peaceful transition to power focuses primarily on rights guarantees to the defeated minority. The minority must be assured of the ability to proclaim its views in the future, the ability to assemble and to organize itself, the ability to be secure in their person and property - in short, much of the formation of rights associated with democratic liberties. But just as surely as the rights domain is necessary for a rudimentary formulation of democratic legitimacy, it is also incomplete. Just as central are the structural protections, which include the obligation to stand for election anew at some fixed or relatively fixed interval, the limitations on the powers of office, and the accountability of the governors to the structures of office, as exemplified in this country by the divisions of powers among coordinate branches of power. This article focuses on the structural components of constitutionalism as a necessary constraint on democratic politics. This precommitment necessarily thwarts or limits deliberative choices after constitutional enactment, yet serves as a precondition for the functioning of democratic politics. The article focuses on the work of political theorists Jon Elster and Stephen Holmes to argue that current constitutional scholarship underestimates the importance of constitutional obduracy. The article concludes with a reexamination of the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment of ex ante constitutional procedures.
Abstract: In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees. Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.
Abstract: As the law governing the political arena transitioned from first-order participation concerns to the integrity of the democratic process itself, legal scholarship looked in part to political science and public choice theory for guidance in structuring the oversight of the political process. This chapter provides a survey of the developments in the public choice literature on electoral processes and describes how those insights have been incorporated into the law of democracy. After providing a brief review of the public choice literature in this area as background, this chapter traces the emergence of a distinct approach in law, one drawing more from Joseph Schumpeter and public choice models of political competition, than from classic constructs of equal protection. The issues of campaign finance, gerrymandering, and the role of political parties provide case studies in how legal scholarship has adopted institutional approaches to politics. Finally, emerging areas in this field of law are described, particularly as concerns the institutional dimensions of the political process. This chapter will be included in an edited volume on Public Choice and Public Law, edited by Dan Farber and Anne Joseph O'Connell and published by Edward Elgar.
Abstract: One of the central functions of the state is protecting the integrity of contracts such that markets and private ordering may thrive. As the scale and scope of markets change, so too must the role of the state in providing assurances against multiple forms of market malfunction. As the breadth of commercial activity expands and as exchange takes on forms unadorned by actual human contact, protecting consumers against harm becomes an essential prerequisite to the healthy functioning of markets. Simply acknowledging the need to police markets and protect consumers is an important but limited first step. All reasonably developed societies do that in some fashion. What is of interest for us is how that is done and what forms of institutional arrangements follow from the array of choices that remain. In this chapter, we take up two topics: first, the typology of harm management itself. By dividing enforcement agents into "public" and "private," and the moments of enforcement into ex ante and ex post, it is possible to develop a typology. Our main focus, however, is not so much on identifying the forms that regulation might take, but on the institutional demands made by these different modes of regulation. It is here that the temporal dimension emerges as critical. Each of the regulatory options must have its own supporting institutions and its own societal infrastructure to make it work. The choice of how to regulate harm ought to be as sensitive to what the tool requires as it is to the shape of the harm itself. These choices are about institutional design and competence as much as alleviation of substantive harm. Our claim is not that a particular form of regulation is superior across all settings. Rather, it is that each regulatory strategy must ensure that the proper institutional actors are in place for its effective implementation.
Regulation, Markets, Class Actions, Private Attorneys General, Consumer Protection
Abstract: Governing Through Intermediaries explores political representation through the lens of agency costs. In particular, it looks at the role intermediaries play in our political system and describes many of them as "superagents," that is, agents who monitor and supervise primary agents on behalf of political principals. While these superagents can help reduce the primary agency costs inherent in representation, they threaten to add a whole new layer of superagency costs to the relationship. We must consider these other costs in designing our political structures. We consider two problems in particular: superagent shirking and fractionated supervision of interests. We also consider the dangers of superagent rent-seeking. While focusing on corporations, unions, and political parties as superagents, the analysis applies to many other entities as well. The piece ends by applying superagency analysis to several thorny issues in campaign finance regulation.
Abstract: This essay explores the potential implications of the creation of a distinct "election period" through the BCRA reforms to campaign finance law. The idea of a separate set of rights of expression during the immediate pre-election period is a relative newcomer to American law, but is a central feature of campaign finance law in other countries. The creation of a defined election period is the underpinning of strong restrictions on political speech in countries such as Britain, and is currently the source of tension under European law. Recent decisions of the European Court of Human Rights, most notably in Bowman v. United Kingdom, highlight the fundamental divide between animating conceptions of liberty and equality in the funding of the political process. By mildly introducing the idea of a separate regulatory sphere for a temporally-defined election period, BCRA intriguingly invites a reexamination of the core constitutional logic of American campaign finance law.
Campaign finance, constitutional law, Buckley v. Valeo
Abstract: Wartime challenges democracies both from without and within. The need to marshal resources against a foreign enemy prompts the centralization of authority which, in turn, threatens to compromise domestic liberty. This article, originally delivered as the 2008 Hart Lecture, examines the ability of democracies to survive military threat with their core liberties intact. The focus is not on the more familiar liberty versus security trade-offs, but on the ways in which divided political authority in democracies serves as a check to both military misadventure and excessive internal suppression. The article begins with a historic account of how political accountability in democracy, from Athens forward, helps explain the relative military success that democracies have enjoyed. Further, even where military emergency has forced emergency measures, the longer-term result tended to be an expansion of democratic accountability, as with the grant of the franchise to those who had served. The core argument is that the political accountability of executive authority, even in times of war, has had both military and political benefits. The article then turns to an examination of the modern war on terror. Here the historic advantages of democracy in terms of citizen involvement and common enterprise are least apparent. The final sections of the article question how well our inherited institutions will perform over long-term conditions of asymmetric warfare against non-state adversaries. The final conclusion is that new frontier of war may place greater strains of judicial oversight of executive claims of exceptional authority precisely because the political safeguards of democracy, while still critical, may not be sufficient.
Abstract: This article, part of a symposium honoring the 25th anniversary of Owen Fiss’s Against Settlement, takes issue with the basic premise that settlement indicates defeat of the weak by the powerful, the poor by the rich, the injured by the wrongdoers. The argument is both empirical and normative. On the empirical side, this article challenges the basic claim advanced by Fiss and Marc Galanter that repeat players in the courts of justice are more likely to prevail because they will marshal and deploy greater resources. Over the past quarter century, the emergence of the well-heeled plaintiffs’ firm together with referral and other market organizing practices have allowed plaintiffs to fight and defeat institutional defendants across all sorts of mass harm cases. Normatively, this article challenges the assumption that the driving organizational framework of the court system should be derived from the structural injunction that characterized an episodic phase of the civil rights movement. Instead, resolution of mass harms has been and continues to be one of the great challenges of the judicial system, a process for which settlement is a critical and likely inescapable component.
Abstract: This essay, written for a symposium on the 25th anniversary of Philips Petroleum v. Shutts, critically examines the legacy of Shutts. The first part argues that Shutts solved the immediate problem of allowing a centralized forum to adjudicate common claims of market-based harms, despite the multistate citizenship of the affected individuals. Shutts handled this by applying a due process balancing approach to the question of personal jurisdiction and, in turn, allowing notice and the ability to opt out to suffice to establish binding personal jurisdiction over class actions. Shutts could not, however, provide a mechanism to ensure that the forum in which the case was consolidated was the most appropriate place to litigate the matter, as opposed to simply being an appropriate forum. The result was widespread forum-shopping in class actions. That problem has been addressed, to some extent, by the newly enacted Class Action Fairness Act. The second part of this essay addresses the problem of choice of law once a case is consolidated in a single proceeding. Shutts struck down the application of forum law to transactions that were unrelated to the Kansas site of the litigation. But Shutts left open the question of what the permissible parameters of choice of law should be. This essay concludes with an argument for why the use of a standardized body of law, such as that from the home state of the defendant, is the necessary next step for the efficient adjudication of common market-based claims.
class actions, Shutts, choice of law
Abstract: This essay, presented as the Higgins Lecture at Lewis & Clark Law School, addresses the issue of the settlement of constitutional authority in areas where judicial intervention is unlikely. Prompted by debates over the constitutionality of congressional efforts to limit the "surge" of forces in Iraq, the question addressed is the development of constitutional division of authority between the President and Congress through the process of institutional accommodation. The essay places the debates over the surge in the context of other constitutional conflicts that also defined the roles of the political branches in areas relatively immune from judicial pronouncements.
Constitution, Separation of Powers, Military Authority
Abstract: Wartime challenges democracies both from without and within. The need to marshal resources against a foreign enemy prompts the centralization of authority which, in turn, threatens to compromise domestic liberty. This article, originally delivered as the 2008 Hart Lecture, examines the ability of democracies to survive military threat with their core liberties intact. The focus is not on the more familiar liberty versus security trade-offs, but on the ways in which divided political authority in democracies serves as a check to both military misadventure and excessive internal suppression. The article begins with a historic account of how political accountability in democracy, from Athens forward, helps explain the relative military success that democracies have enjoyed. Furthermore, even where military emergency has forced emergency measures, the longer-term result tended to be an expansion of democratic accountability, as with the grant of the franchise to those who had served. The core argument is that the political accountability of executive authority, even in times of war, has had both military and political benefits. The article then turns to an examination of the modern war on terror. Here the historic advantages of democracy in terms of citizen involvement and common enterprise are least apparent. The final sections of the article question how well our inherited institutions will perform over long-term conditions of asymmetric warfare against non-state adversaries. The final conclusion is that the new frontier of war may place greater strains on judicial oversight of executive claims of exceptional authority precisely because the political safeguards of democracy, while still critical, may not be sufficient.
Abstract: Around the world, traditional barriers to judicial engagement with the structure of democratic politics have fallen remarkably as courts increasingly entertain first-order questions about the structures of governance. This article explores judicial responses to a particularly vexing problem: who should be the polity that decides first-order political issues? The most famous such judicial encounter is that of the Canadian Supreme Court in a case involving whether Quebec had a right to secede based on a referendum of its own population. The discussion places the Canadian Court's resolution of that issue in the context of how numerous courts around the world, including the United States Supreme Court, have addressed similar questions, though generally in cases not so freighted as the potential dissolution of the national federation. Concluding from a review of such cases that courts forced (or willing) to engage such issues are likely to find little mooring for their resolution in either legal doctrine or political theory, the article warns that courts should be wary of following their impulses to treat such first-order conflicts about the structure of political systems as familiar claims of individual rights, even if that is the posture in which the issues are litigated.
Abstract: With the 2007 renewal date for Section 5 of the Voting Rights Act now approaching, the question must be addressed whether the legal and practical preconditions for this extraordinary statute still exist. This Essay suggests that there were four preconditions necessary for the striking successes that Section 5 had in transforming politics in its covered jurisdictions: the urgency of swift intervention to counteract the complete exclusion of black citizens from political life in the South; the ease of the administrative remedy; the absence of political competition in the one-party covered jurisdictions; and the lack of any incentive toward partisan manipulation of the preclearance powers exercised by the Department of Justice. Each of these factors has been changed by the creation of a robust political environment in the jurisdictions covered by Section 5, particularly by the establishment of an important core of influential black elected officials. This leads to the question of whether the success of Section 5 has compromised its mission, as reflected in the major decisions under Section 5 following the post-2000 reapportionment. The Essay concludes by questioning whether Section 5 has served its purpose and may now be impeding the type of political developments that would have been a distant aspiration when the Voting Rights Act was first passed.
voting rights, Section 5, preclearance
Abstract: This paper examines the regulatory implications of behavioral economic insights. The central effect of behavioral economics in the legal literature to date has been to challenge the premise of formal economic theory that individuals understand their preferences and work to maximize these preferences. Behavioral economics has gathered increased attention in the economic analysis of law because of its demonstration that individual decisionmaking is prone to numerous biases and heuristics, and that as a result individuals may not act to realize their best interests. Part of the enthusiasm for behavioral economics in the legal literature has come from the apparent compatibility of the behavioral insights with proposals for paternalistic regulation. By pointing out some of the ways that human behavior falls short of perfect rationality, behavioral economics can potentially expand the scope of beneficial paternalistic policies that constrain individual choice. However, such policies should be implemented cautiously, given differences in opinion about what behaviors are irrational and concerns about costs imposed on people who are rational. In response to these concerns, we propose a principle for developing and evaluating regulatory policies that we term "asymmetric paternalism." Asymmetrically paternalistic regulations benefit those who would otherwise make poor decisions, but impose little or no costs on those who behave optimally. As such, they challenges both opponents and supporters of regulation by setting forth a disciplined set of criteria by which to judge the costs and benefits of regulatory proposals. The article explores the application of this principle to several specific sources of flawed decision making identified by behavioral economics in such diverse areas as retirement savings, consumer protection, and family law, and suggests examples of already existing regulations in these fields that seem to embody the principle of asymmetric paternalism.
behavioral economics, regulation, paternalism
Abstract: The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does not prescribe correctives to such overreaching when it occurs. This Essay argues that the legislative and executive branch cannot check judicial overreaching without threatening judicial independence. The authors suggest that principled criticism of judicial decisions by members of the legal academy can play a checking function but that much of the academic criticism of Bush v. Gore - especially those broadsides that accuse the majority Justices of subjective bad faith - will not be productive in that way. The authors then offer criteria for principled criticism.
Abstract: Previous experimental research conducted by the authors has found that self-serving biases are a major cause of negotiation impasses. This article reports experimental studies that test the ability to counteract the biased integration of information that can impede settlement. In this study, we show that a simple intervention can mitigate such biases and promote efficients settlement of disputes.
Abstract: This article questions the premises behind the use of the antidiscrimination model to address the obstacles faced by older employees. By viewing aging against the career wage model, the article identifies predictable problems faced by employees at the tail end of their careers, but questions the appropriateness of treating these as discrimination claims. In particular, the 1986 and 1991 amendments to the ADEA are analyzed to show how the discrimination model can be misused as a pretext for an intergenerational wealth transfer to the generation approaching retirement. That process is facilitated by the effective lobbying efforts of powerful institutional actors, such as the AARP. The article examines the operation of actual programs of mandatory retirement and the Older Workers Benefits Protection Act and concludes with recommendations for institutional reforms in light of the abolition of mandatory retirement.
© 2009 Social Science Electronic Publishing, Inc. All Rights Reserved. FAQ Terms of Use Privacy Policy Copyright This page was served by apollo2 in 0.281 seconds.
