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Severability First Principles
Full text linkThe United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.
This Article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.
Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way—the relevance of unconstitutional removal restrictions, the non-constitutional law that resolves unconstitutional combinations, and the relevance of severability to standing and other procedural questions
Defamation with Bayesian Audiences
No full textHow strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then laxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects in analyzing defamation law
Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building
Full text linkThe United States has always been more than simply a group of united states. The constitutional history of national union and component states is linked to a third category: federal territory. This Article uses an integrated history of territory, statehood, and union to develop a new framework for analyzing constitutional statehood. Three historical periods are crucial—the Founding Era, the Civil War, and Reconstruction—as times when statehood was especially malleable as a matter of constitutional law. During each of those formative periods, the most important constitutional struggles about statehood and the union involved federal territories.
Conflicts about territories reveal an important distinction between theories of states’ constitutional authority to participate in national politics (the “skeleton” of statehood) and their constitutional authority to resist the national government (the “muscle” of statehood). The skeletal authority of states to participate in federal politics has been legally explicit and essential since the Articles of Confederation. By comparison, advocates for muscular states’ rights have relied on dubious inferences and historical distortions.
During the Founding Era and the Civil War, pivotal disputes concerning territories were resolved to favor the skeleton of representational statehood instead of the muscular statehood of antifederal resistance. During Reconstruction, however, the Supreme Court created new doctrines of muscular statehood that were based on inaccurate histories of the Founding and the Civil War. Judicial decisions like the Slaughter-House Cases and the Civil Rights Cases applied those doctrinal theories of muscular statehood to limit individual rights and congressional power under the Reconstruction Amendments. In the late twentieth century, such precedents gained force after the confirmation of politically conservative Supreme Court Justices, and similar doctrines might be even more powerful with the modern Court’s conservative supermajority
When Homemakers Are Compensated: The Effect of Homemaking Provisions on Spousal Time Allocation
No full textMany argue that the liberalization of divorce laws reduced the commitment value of marriage and thus discouraged the division of labor in a household. I examine how homemaking provisions in marital property law that recognize the contribution of homemakers in the division of marital properties at divorce affects spousal time allocation. Conceivably, such laws could increase the gendered division of labor in a household. I develop a noncooperative household model to analyze the effects of such provisions on spousal time allocation. The empirical findings provide support for the noncooperative household model, particularly under unilateral divorce regimes in which it is difficult for partners to make long-term commitments to each other. The results show that a unilateral divorce regime with a homemaking provision is associated with wives increasing their housework and reducing their market labor
The Right to Be Forgotten: Google Spain as a Benchmark for Free Speech versus Privacy?
Full text linkSince the Court of Justice of the European Union ruled in Google Spain in 2014, the global legal discourse on the “right to be forgotten” (RTBF) has accelerated the RTBF’s establishment as a right to informational privacy. But international courts have varied in their interpretations and applications of the RTBF, with some embracing it and others being wary of balancing the right with freedom of expression. While de-indexing search engine results was the primary method of facilitating the RTBF in Google Spain, this method has not necessarily informed many courts’ RTBF decisions. Instead, international and foreign courts are increasingly finding that anonymizing or removing original stories linked to internet users is not necessarily the best approach, and that updates, corrections, and responses to contested stories are often preferable options. Over time, global judicial procedures have evolved to deal with the RTBF in a more sophisticated manner, clarifying its conceptual and theoretical boundaries. Notably, non-EU countries have made significant contributions to the legal discussion on how to balance the RTBF with freedom of expression, as evidenced by the Brazilian Supreme Court. The RTBF will undoubtedly continue to be an important part of the “privacy versus free expression” debate, with the balance shifting toward the right to privacy
The Honeypot Stings Back: Entrapment in the Age of Cybercrime and a Proposed Pathway Forward
Full text linkCybercrime’s transnational nature has rendered conventional methods of domestic policing ineffective. The international community must cooperate to combat cross-border cybercriminals. Law enforcement efforts to respond to the threat through cyber sting operations call into question the degree to which individuals are protected by the entrapment defense. There is disagreement in the international community about the validity of the defense. The lack of consensus threatens effective law enforcement cooperation in responding to cybercrime, posing a global security risk. Furthermore, if countries with dissimilar entrapment rights cooperate to share data and carry out cyber stings, there is a heightened risk of the rights of the private citizen being diluted. After summarizing existing international agreements that discuss transnational crime and cybercrime, this Comment proposes that the international community modify the Budapest Convention to establish a “minimum floor” of entrapment rights. This approach would require countries, at a minimum, to consider entrapment as grounds for mitigation at sentencing or discretionary exclusion of evidence. While countries have been hesitant to explicitly codify entrapment in legislation, there has been an observed acceptance of entrapment-based rights in practice
Labor Mobility and the Problems of Modern Policing
Full text linkWe document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.
We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, rank, and seniority—and discuss its normative implications. On the one hand, job stability may encourage investment in training and expertise by agencies and officers alike; it may also attract some high-quality candidates, including candidates from underrepresented backgrounds, to the profession. On the other hand, low labor mobility can foster sclerosis in police departments, entrenching old ways of policing. Limited outside options may lead officers to stay in positions that suit them poorly, decreasing morale and productivity and potentially contributing to the scale of policing harms. In turn, the lack of labor mobility makes it all the more important to police officers to retain the jobs they have. This encourages them to insist on extensive labor protections and to enforce norms like the “blue wall of silence,” which exacerbate the problem of police misconduct. We suggest reforms designed to confer the advantages of labor mobility while ameliorating its costs
Against Political Theory in Constitutional Interpretation
Full text linkJudges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory
The Effects of Deregulating Retail Operating Hours: Empirical Evidence from Italy
Full text linkWe estimate the impact of deregulating shop hours on the structure of the retail sector and the size and composition of its labor force. To identify the effect of interest, we exploit the staggered implementation of a reform that allowed Italian municipalities to adopt fully flexible operating hours in the late 1990s. Our findings indicate that lifting restrictions on hours increased retail employment by 2.4 percent and increased the number of shops in the affected municipalities by 1.8 percent. In combination with estimates using individual-level data, our results further suggest that retail employment grew more in larger retail operations, with a corresponding movement of the labor force toward permanent employees and away from the self-employed
Patent Validity and Litigation: Evidence from US Inter Partes Review
Full text linkWe analyze how new information about the validity of a patent impacts the settlement of patent infringement litigation. A party accused of patent infringement in the United States may—in parallel with defending itself in court—challenge the validity of the allegedly infringed patent by petitioning the Patent Trial and Appeal Board (PTAB), an administrative tribunal in the US Patent and Trademark Office. Review by PTAB generates new information about the validity of challenged patents, and we study empirically the resulting effect on settlement of an accused infringer’s decision to file a petition to challenge a patent’s validity and, conditional on the filing of a petition, the PTAB’s initial decision to grant or deny the petition on the basis of its assessment of a reasonable likelihood of invalidity. We find that both decision points have large, positive effects on the settlement of parallel court proceedings