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Inconsistency on Multimember Courts
No full textAppellate courts sometimes issue inconsistent decisions. Individual judges are sometimes inconsistent too. We argue that making judges more consistent could exacerbate the problem of inconsistent courts. We do so through a variant of Arrow’s model of preference aggregation in which preferences are complete but need not be transitive. We introduce an ordinal rationality measure to compare preference relations. Using this measure, we introduce a new axiom, monotonicity in rationality, which requires the collective preference to become more rational when individuals’ preferences become more rational. We show that no collective choice rule satisfies monotonicity in rationality and the standard Arrovian assumptions: unrestricted domain, weak Pareto, independence of irrelevant alternatives, and nondictatorship
Parental Rights: Rhetoric Versus Doctrine
Full text linkProfessor Josh Gupta-Kagan observes that the Restatement of Children and the Law1 does not transform the law of child abuse and neglect.2 As he contends, this is neither a feature nor a bug.3 It is simply the reality of a restatement, which can only nudge, not reform, the law4 I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars—including both of us—who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem for law reform. But the nature of a restatement is to restate.
Notwithstanding this inherent constraint, I want to under- score one aspect of Gupta-Kagan’s argument and suggest that the Restatement5 does more than may first meet the eye. Gupta-Kagan applauds the Restatement’s embrace of parental rights for families facing coercive state intervention through the family regulation system. He demonstrates that at several doctrinal forks, the Restatement relies on parental rights to choose the rule that is more protective of family integrity. As Gupta-Kagan shows, by emphasizing these rights, the Restatement reinforces the doctrinal shield that helps protect marginalized families from state intervention. I second the value of this shield, but in my view, the Restatement does something else as well.By restating the doctrine of parental rights—as it applies in the family regulation system and more broadly—the Restatement offers an institutional counterbalance to the heated partisan rhetoric around parental rights. Across the country, political leaders and advocates are claiming that these rights mean parents can control school curricula, minors cannot access reproductive health care without parental involvement, and parents must know about a child’s exploration of gender identity outside the home.6 This invocation of parental rights is not an attempt to recalibrate doctrine. It is a political strategy for advancing a world view.7 And it is highly effective, leading to considerable legislative success, at least for the moment.8
Legal scholars appropriately identify the dangers in this political strategy,9 but, as I argue in this brief response Essay, even as we recognize the problems with the rhetorical invocation of parental rights, we cannot lose sight of the doctrinal importance of parental rights. As I elaborate below, in both its process and sub- stance, the Restatement quietly and steadily affirms existing legal doctrine. The Restatement identifies the core interest at stake in parental rights: the relationship of a parent and child and the ability for one to be with the other. Protecting the parent-child relationship is important for all families, but it is especially critical for marginalized families, who are at heightened risk of family separation. And by underscoring these interests and their deep doctrinal roots, the Restatement may (optimistically), provide a counterbalance to the ongoing culture wars
The Strange Career of Antisubordination
Full text linkConstitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible—provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept’s support for affirmative action as one part of its larger intellectual program that inexorably champions racial egalitarianism.
This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. Some of the most reviled opinions in Supreme Court history were predicated upon antisubordination rhetoric, as that concept has been used both to challenge and to maintain racist regimes. Legal luminaries from across the ideological spectrum, moreover, have often contended that affirmative action marks Black and brown people as substandard. Indeed, it is impossible to understand last Term’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College without foregrounding antisubordination’s multiplicity. That decision introduced “antisubordination” into the U.S. Reports, reframed how affirmative action subjugates racial minorities, and witnessed the Justices talking past each other by wielding the concept in divergent fashions. Grappling with antisubordination’s complexity remains urgent today because the theory has been exported to an ever-growing, astonishingly diverse array of legal domains
Exclusion of Extreme Jurors and Minority Representation: The Effect of Jury Selection Procedures
No full textWe compare two jury selection procedures meant to safeguard against the inclusion of biased jurors but are perceived as causing minorities to be underrepresented. The strike-and-replace procedure presents potential jurors one by one to the parties, while the struck procedure presents all potential jurors to the parties before they exercise their challenges. The struck procedure more effectively excludes extreme jurors but leads to a worse representation of minorities. The advantage of the struck procedure in terms of excluding extremes is sizable in a wide range of cases. In contrast, the strike-and-replace procedure better represents minorities only if the minority and majority are polarized. Results are robust to assuming that the parties statistically discriminate against jurors on the basis of group identity
The Impact of Affirmative Action Implemented in Brazilian Universities: Increased Racial Self-Identification Among Brazilians
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Balancing Interests in the Separation of Powers
Full text linkThere are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes—including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege—do not involve instances where one branch is trying to exercise the other’s exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult separation of powers questions involve separation of powers infringements—instances where both branches have power to act, but one branch’s exercise of power infringes on or interferes with the other’s exercise of power.
This Article proposes a method built to resolve precisely such cases: interest balancing. Accepting that both branches might have power to act over a matter, interest balancing asks whether one branch’s exercise of power has infringed upon the other’s and, if so, whether such infringement is justified by a sufficiently strong interest. This mode of analysis might sound familiar, as it is the standard method of addressing infringement on constitutional entitlements in the other half of constitutional law—individual rights. When someone alleges an individual rights violation, we do not ask whether the government or individual has “exclusive power” over the matter, nor do we resolve the dispute by asking how it might affect the “general balance of power” between the individual and the government. Instead, we ask whether a right has been infringed and, if so, whether such infringement can be justified by a sufficiently strong governmental interest.
Despite the long history of interest balancing in individual rights cases, scholars have failed to appreciate its utility in resolving separation of powers disputes. Yet, there is precedent for its use in the separation of powers. It was introduced in Nixon v. Administrator of General Services, continues to be the standard method of resolving executive privilege disputes, and has been used, albeit never routinely, by executive branch actors and courts of appeals in various other domains. Notwithstanding this precedent, neither courts, nor scholars, have recognized interest balancing’s potential as a general framework for resolving separation of powers disputes. This Article identifies interest balancing as a coherent method of separation of powers analysis that is both conceptually and practically well suited to address the separation of powers disputes that actually arise today. It explains how interest balancing is distinct from the prevailing approaches—including formalism, functionalism, Justice Robert Jackson’s Category Three analysis in Youngstown Sheet & Tube Co. v. Sawyer, and recent proposals for categorical deference to statutes— —and then evaluates its strengths and weaknesses relative to such approaches. Ultimately, it concludes that interest balancing is the approach best suited to resolve the difficult cases that actually arise—those of separation of powers infringements. The Article then theoretically develops how interest balancing can be operationalized and improved going forward
Expecting Corporate Prosociality
No full textThis paper develops and tests a theory of stakeholders’ expectations and corporate prosociality: Stakeholders taught to believe that corporations cannot and should not sacrifice profits for society will be less willing to reward and punish corporations for their societal impacts. Firms will then have less incentive to care about their social impacts. In two preregistered studies with nearly 1,300 participants, Amazon Mechanical Turk workers taught an exclusive profit-maximization norm were less likely to sign a real petition against Amazon than those taught that firms can and should care about society. Exclusive profit maximization led participants to believe that it was less appropriate and effective for employees to push for social change, that fewer firms would care, and that fewer other people would protest. Expectations of corporate prosociality—rather than of exclusive profit maximization—could thus make it easier for firms to do well by doing good
Corporate Participation in Social Debates
Full text linkCorporations are increasingly wading into social and political matters that are unrelated to their business operations. This Paper empirically investigates corporate participation in social debates through the corporate response to Dobbs, the Supreme Court’s decision overturning the constitutional right to abortion.
First, the Paper identifies and examines the public companies that reacted to the reversal of Roe v. Wade (“Reacting Companies”). Only a few corporations reacted. On the one side, they tend to be large, with sizeable workforces, concentrated in consumer-facing and tech industries, and headquartered in states with no restrictions on abortion rights. On the other side, they tend to have more female representation on the boards and more liberal-leaning CEOs. The findings suggest that companies decided to speak mainly driven by strategic positioning reasons, but leadership’s gender and ideology might have facilitated their choice to take a stand on reproductive rights. This view is further supported by the examination of the corporate contributions to the Republican Attorney General Association (“RAGA”), which has been vocal about its fight against abortion rights. More than 20% of the Reacting Companies made anti-abortion donations, even after the reversal of Roe v. Wade, disclosing the potential inconsistency of corporations’ political speech.
Second, the Paper focuses on how corporations speak. An empirical survey of the corporate statements in reaction to Dobbs reveals heterogeneous responses. The majority of the statements only announced the coverage of employees’ abortion travel expenses (“Employee Statements”). A third of the statements expressed instead a clear political stance in support of abortion rights and against the Supreme Court’s ruling (“Political Statements”). Companies that issued Employee Statements were more likely to have Republican-leaning CEOs and to make anti-abortion donations, indicating they may have spoken due to their constituencies’ pressure. Political Statements, conversely, tended to be issued by smaller companies and were significantly more likely to be authored by the CEO itself, making it unclear if the CEO was speaking on behalf of the company or expressing a personal belief.
Overall, the Paper documents that corporations participating in the public discourse are driven by different motives and speak with different and sometimes inconsistent voices. As a result, corporate statements on social and political issues do not represent a meaningful signal of companies’ values and cannot mitigate the lack of transparency of corporations’ broader political activity