This article describes and analyzes a hitherto unrecognized doctrine—the political remedies doctrine. This doctrine maintains that courts ought not adjudicate separation of powers claims until both political branches of government have asserted their rights. The doctrine has escaped analysis (and even explicit notice) because judges camouflage it, employing it while invoking the more familiar rubrics of ripeness, standing, political questions, and equitable discretion. Justice Powell provided the leading articulation of the doctrine, but the Supreme Court as a whole has never squarely endorsed it. The political remedies doctrine, however, has played a surprisingly important role in the lower courts, helping justify refusal to adjudicate war powers cases and cases arising from President Trump’s challenges to the constitutional order. While invoked as a neutral rule, the courts always apply it to shield presidential acts from judicial scrutiny and never to protect acts of Congress from activist adjudication. As such, it tends to aid aggrandizement of presidential power. Partly for that reason, this doctrine has great potential to unravel the rule of law and even, during times of partisan stress, to hasten the collapse of the separation of powers undergirding our democracy. This article claims that the Courts should not apply this doctrine, except perhaps to avoid adjudication of challenges to bipartisan legislation signed by the President. It employs a Coasean property rights analysis to provide new insights germane not just to this doctrine, but also to debates about the proper role of bargaining in resolving separation of powers questions, general theory about the relationship between law and politics, and understandings about how the courts should approach justiciability doctrine more generally. That Coasean analysis shows that judicial resolution of separation of powers claims on the merits does not preclude political bargaining, but simply determines a baseline for future negotiations. Conversely, dismissing claims because of the potential for political bargaining functions much like a ruling on the merits, also creating a constitutional baseline for future political negotiations. Hence, justiciability rulings do not involve a choice between political and judicial resolution of disputes, but rather a choice about baseline power allocations form which to conduct future bargaining. Thus, analysis of this hitherto unrecognized doctrine yields a host of useful insights.
Within policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not just the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers themselves should recognize. Any other regulation of police violence is inappropriate and unnecessary. The Constitution does not actually regulate the use of force, though. It regulates seizures. Some uses of force are seizures. A surprising number of others — including some police shootings — are not. Uses of force that do not amount to seizures fall entirely outside the ambit of Fourth Amendment regulation. And even when a use of force does constitute a seizure, the Fourth Amendment is a distressingly inapt regulatory tool. There is, in short, a fundamental misalignment between what the Fourth Amendment is thought to regulate and what it actually regulates, and there are good reasons to doubt the efficacy of that regulation even when it applies. Put simply, the Fourth Amendment provides a profoundly flawed framework for regulating police violence. The Constitution is not the only option.; state law and police agency policies are often seen as promising regulatory alternatives. What has largely evaded academic attention, however, is the extent to which state courts and police agencies simply adopt or incorporate the constitutional standards into their own governing frameworks. In this way, the Fourth Amendment’s flaws have spilled over into the sub-constitutional regulation of police violence. This Article details the substantial shortcomings in constitutional jurisprudence, describes the problem of Fourth Amendment spillage, and argues that the divergent interests underlying the various regulatory mechanisms should lead state lawmakers and administrative policymakers to divorce state law and administrative policies from constitutional law. It doing so, it advances both academic and public conversations about police violence.
The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions. In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial of benefits and rights — from travel to disability — have revealed a pernicious pattern of bizarre and unintelligible outcomes. Scholarship to date has explored the pitfalls of automation with a particular frame, asking how we might ensure that automation honors existing legal commitments such as due process. Missing from the conversation are broader, structural critiques of the legitimacy of agencies that automate. Automation throws away the expertise and nimbleness that justify the administrative state, undermining the very case for the existence and authority of agencies. Yet the answer is not to deny agencies access to technology. This article points toward a positive vision of the administrative state that adopts tools only when they enhance, rather than undermine, the underpinnings of agency legitimacy.
Access to affordable credit played a central role in the Civil Rights Movement. But today, racial and ethnic minorities oversubscribe to high-cost lending products like payday loans and underuse more affordable credit options that traditional banks offer. These trends remain even when controlling for demographic variables like income, credit score, and education. While research verifies that these disparities exist, little work explains why. This Essay argues that advertising entrenches these racial inequities. Two empirical studies we conducted of advertising by banks and payday lenders suggest that payday lenders steer African Americans and Latinos to their products while banks market to whites. For instance, though African Americans make up only 23% of payday lending customers, 35% of the “model” customers featured in advertising on these lenders’ websites depict African Americans. Meanwhile, almost 30% of mainstream bank websites featured no African American models. Almost 75% featured no Latino models. Only 3% did not feature a white model. Even after the outcry over racial injustice in 2020, banks did not appreciably increase the representation of people of color on their websites. This needs to change. We argue that lenders themselves are the first and simplest source for racial justice in advertising credit. Both payday lenders and banks can easily ensure that their advertising reflects the communities they serve. Congress and the Consumer Financial Protection Bureau also have a role to play. Amendments we propose to the Equal Credit Opportunity Act, the Community Reinvestment Act, and the regulations that implement them call for advertising that welcomes people of color to affordable credit sources.
During the COVID-19 pandemic, federal and state governments have disregarded racial and ethnic minorities' unequal access to employment and health care, which has resulted in racial inequities in infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are employed in low-wage essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, racial and ethnic minorities have disproportionately been infected and died from COVID-19. Although these actions seem race "neutral," they exemplify systemic racism, wherein racial and ethnic minorities are deemed inferior to white people, and thus do not receive the same access to resources, such as employment and health care. This Essay illustrates how systemic racism has resulted in racial inequities in COVID-19 infections and deaths through case studies in employment and health care. Using the health justice framework, it concludes with suggestions to eradicate systemic racism, redress harm, and engage communities in implementing an equitable pandemic response.
The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution. This Article seeks to bring theoretical coherence and analytical clarity to the law-fact distinction. It pushes back against the formal view that questions of law and questions of fact are categorically distinct. Instead, drawing on legal process principles, this Article argues that an issue is typically deemed a question of law or a question of fact because legitimacy concerns demand its resolution by a particular decision maker. Through that reconceptualization, this Article’s legal process model offers a number of significant contributions. First, as a descriptive matter, it explains the cause of the jurisprudential turbulence surrounding the law-fact distinction. Second, normatively, it highlights the weaknesses of traditional law-fact model, which enables institutional aggregations of power. Finally, it promises to transform the process of classifying issues, turning that analysis into a simple transparent effort to allocate decision-making authority in a manner that will best optimize the legitimacy of adjudication—that will best achieve procedural justice.
This Essay argues that the events of 2020 opened a window of political opportunity to implement policies aimed at dismantling structural injustice and systemic racism. Building on the work of philosopher Charles Mills and political scientist Clarissa Rile Hayward, we argue that the Black Lives Matter Movement constituted the “disruptive politics” necessary to shift dispositions of many in the United States toward racial equity by interrupting the white “epistemologies of ignorance.” Moreover, because policies that correct structural injustice are beneficial for people across race, even those whose hearts and minds remained closed may embrace legislative policies that function to dismantle systemic racism. As people become habituated to structures that facilitate equality and the policies that underlie them, the United States will finally begin to tip toward equality and a society of belonging
The U.S. Census reports that Minority business ownership exceeds the corresponding racial makeup of U.S. demographics. Based on these figures, the principle of free enterprise seems to be acting on equal grounds. Could entrepreneurship be the social panacea for abolishing racial biases and the inequality gap?This Essay argues that this parity of Minority entrepreneurship is misleading. The Kauffman Foundation and Small Business Administration most recently reported that Black-owned firms represent only 7% of all U.S. businesses, Asian-owned firms represent only 4.3%, and Hispanic-owned firms represent only 10.6%. These businesses typically do not grow or expand, leavingthe number of people employed by them relatively constant. Overall, minority-owned firms experience more business failure, turnover, and job loss than traditional businesses. This disparity in American free enterprise is, in and of itself, a source of systemic racism and social injustice.Seemingly, American Minority entrepreneurs are given false hope of economic independence. In fact, this Essay illustrates that current legal programs destine many of them for insolvency, bad credit, debt accumulation, or, at best, being rendered small and meaningless in the marketplace without the proper tools and opportunities to increase equity and wealth.The Essay concludes by proposing new legal methods to increase dedicated access to capital, networking, guidance, and education for racially diverse entrepreneurs. Specifically, it proposes relaxing bureaucracy, fixing biases in lending, forming racially inclusive networks, and cultivating the role of lawyers as social agents who can inform Minorities about impediments and opportunities to accumulate wealth and economic growth.
The United States is on the verge of a new industrial revolution. Renewable energy could replace more than 60% of our current energy generation infrastructure in fifteen years. This change is critical, yet it risks failure. The renewable generation already built in the United States consists primarily of large-scale projects connected to transmission lines in rural areas. The expansive new generation needed to reduce carbon emissions must also be predominantly large-scale, and rural, for reasons of efficiency. But a revolution that focuses nearly exclusively on “big energy” is likely to encounter obstacles, and it has downsides that could be mitigated with a stronger focus on small-scale energy.Many rural Americans—predominantly Republican—oppose Democratic policies, particularly climate policies. Even avowedly green liberal communities have mounted stiff opposition to renewable energy in some areas. Many landowners—particularly farmers—welcome the income from renewable energy leases, but residents often object to the blinking lights, landscape disruption, unsightly wires, and other impacts of these projects. Beyond facing political opposition, a projected buildout of more than 200,000 miles of new transmission lines to support new large-scale renewable projects threatens to create negative infrastructural path dependence. This could be analogous to the federal highway network expansion of the 1950s, which largely cemented U.S. reliance on cars rather than mass transit and divided communities. We need a nationwide network of new long-distance transmission lines to connect large renewable energy generation to population centers. But small energy projects could replace the need for some of these wires.Policymakers should place greater emphasis on “small” distributed energy in the form of solar and wind generation over or near parking lots, roadways, and buildings; community-scale renewables and microgrids; and energy efficiency projects, such as weatherization of apartment buildings. This effort is likely to be more politically feasible than a revolution focused too heavily on large-scale projects. And when targeted properly, small-scale clean energy can reduce the crushing energy burdens faced by low-income communities, whether rural or urban.For the energy transition to be feasible and less objectionable from a community and present-day environmental perspective, energy policies should also ensure that large-scale renewable generation is built in ways that reduce host community impacts. Renewable or clean energy policies should prioritize projects on polluted or abandoned brownfields, as New York requires; on marginalized farmlands; or offshore. Policies should also require large-scale renewable energy developers to negotiate with host communities and offer benefits—another strategy followed in New York.
In an age of dark money—the anonymous political spending facilitated by gaps in our campaign finance disclosure laws after Citizens United—the Supreme Court’s campaign finance disclosure jurisprudence may be on a collision course with campaign finance disclosure laws. It is urgent for the Court to understand the informational benefits of campaign finance disclosure, so it may avoid this collision. Campaign finance transparency teaches us more than one-dimensional information about the candidate’s left- or right-leaning policy preferences. It also helps us learn about candidate type. Social scientists, including myself, have run several studies examining voter learning from campaign finance information. As I explain in this Article, when voters learn about a candidate’s position with regard to dark money, they learn and vote differently than if they did not have that information. Experimental and observational research also suggests that voters punish noncompliance and reward overcompliance. In other words, transparency about campaign finance disclosure and compliance informs voters. These findings point to useful policy innovations for states and cities, while the federal government is unable or unwilling to regulate. The innovations I propose include “disclosure disclaimers,” which inform voters about the presence of dark money in a campaign, and campaign finance audits, which inform voters about compliance with campaign finance laws. But more basic loophole-closing can also provide helpful information to voters. I explain implications for the courts, campaigns, and policymakers, as well as limitations on the argument.
Hyperpartisanship dominates modern American politics and government, but today’s politics are strikingly different from the preceding period of American history, a Cold War Era when bipartisanship and ideological moderation predominated. Hyperpartisanship was not the salient dynamic in American politics when campaign finance law began, and as a result, campaign finance law developed under strikingly different assumptions about American politics than the current prevailing circumstances. Today’s campaign finance law, inherited from this preceding era, is thus mismatched to the campaign finance of today. Campaign finance law focuses on individual candidates as the central actors in fundraising and misses the role of parties in organizing the campaign finance landscape. It therefore both systematically underestimates the risk that parties pose in collectivizing the potential for campaign finance corruption and overestimates the First Amendment values promoted by modern campaign finance when the parties today focus so heavily on mobilizing their base and preaching to the choir.
There has been a decades-long effort to repair an increasingly fragile international tax system. One reason it has foundered has been what we identify as the ‘Liberia problem.’ In 2000, the powerful Organization for Economic Cooperation and Development identified Liberia—but not Switzerland—as a tax haven and targeted it for sanctions. It did not go well. During the two decades since, everything has changed; yet seemingly from this lens of inclusion, nothing has changed at all. Awkwardly similar “blacklists” still target ‘Black’ and ‘Brown’ jurisdictions despite the fact that experts mean something quite different when they speak of the “scourge of tax havens” and secrecy jurisdictions. We think differently in important respects but believe that those real disagreements demonstrate the need for a less-insular global tax policymaking apparatus. And we share a conviction that a more inclusive and more level playing field in the international tax arena would benefit all states. To show why, we offer a series of possible “truths” designed to prompt a long-overdue conversation about perceptions of bias and privilege in international taxation.
